(dissenting).
In his motion to quash, which the Juvenile Court of Orleans Parish sustained, the defendant contended that: (1) The Court-is-without jurisdiction, to establish the paternity of the illegitimate child and (2) there exists no civil, obligation upon the defendant to support such child.
In my opinion the Juvenile Court for the Parish of Orleans has jurisdiction of the entire prosecution. Section 96 of Article VII of the Louisiana Constitution states that the named court “shall also have jurisdiction of all cases of desertion or nonsupport of children by either parent * *.” And in State v. Galjour, 215 La. 553, 41 So.2d 215 we held that such jurisdiction extended to a criminal prosecution for nonsupport of children brought under LSA-R.S. 14:74, an offense like that with which this defendant is charged.
Of course, in the Galjour case the children apparently were legitimate, whereas here the subject child is illegitimate. However, that is immaterial for the purpose of this decision, for investing jurisdiction in the Juvenile Court of “all cases of * * non-support of children by either parent” our Constitution makes no distinction between the mentioned two types. Besides, in prosecutions of this nature the matter; of establishing the paternity of a neglected, child (whether legitimate or illegitimate),, including the duty of the state to prove, such relationship.and the method to be employed in so doing, gives rise merely to a question of proof, not one o-f jurisdiction.
Under the other contention urged in the, motion to quash it is argued that to obtain' á conviction under LSA-R.S. 14:74 there must he established the. prior existence, of a civil-.obligation to support the illegitimate-child; and;.in substantiation of the argu*171ment, defense counsel relies primarily on State v. Mack, 224 La. 886, 71 So.2d 315.
The defendant in the Mack case had been charged under LSA-R.S. 14:74, as amended and reenacted by Act 368 of 1952, the pertinent portions of which read:
Ҥ 74. Criminal neglect of family
“Criminal neglect of family is the desertion or intentional non-support:
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“(2) By either parent of his minor child, whether legitimate or illegitimate, who is in destitute or necessitous circumstances, there being a duty established by this article for either parent to support his child. The parent shall have this duty without regard to his reasons and irrespective of the causes of his living separate from the other parent. The duty established by this-article shall apply retrospectively to all children, legitimate or illegitimate, born prior to the effective date of this article.
“In the case of an illegitimate child, evidence may be introduced in the proceedings hereunder to prove paternity or maternity. This proof shall be made in accordance with the rules established by the Revised Civil Code of 1870, as amended, as for proof of paternity or maternity for civil purposes. Such proof, however, shall be used solely as the basis for the duty to support an illegitimate child established by this article, and shall not be construed as establishing any civil obligation.”
In ordering the charge dismissed against the defendant in that case (Wilton Mack) a majority of the members of this court (not including the present writer who dissented) reaffirmed the decisions in State v. Jones, 220 La. 381, 56 So.2d 724, and State v. Sims, 220 La. 532, 57 So.2d 177, and held that a prerequisite for conviction under such statute, as amended in 1952, was prior proof of paternity (it had not been made) by legal acknowledgment or civil judgment in accordance with the rules established by the Revised Civil Code of 1870 to which reference was made in the statutory provisions. The codal article particularly referred to by the majority, and which deals specifically with the mentioned two methods of proof, is No. 242. It recites:
“But in order that they [illegitimate children] may have a right to sue for this alimony, they must:
“1. Have been legally acknowledged by both their father and mother, or by either of them from whom they claim alimony; or they must have been declared to be their children by a judgment duly pronounced, in cases in which they may be admitted to prove their paternal or maternal descent;
“2. They must prove in a satisfactory manner that they stand absolutely in need of such alimony for their support.” (Brackets mine.)
However, subsequent to the decision in the Mack case the Legislature enacted Act *173298 of 1954 which added to LSA-R.S. 14:74 a new section, it being numbered 74.1 and reading: “The provisions of Art. 242 of the Louisiana Revised Civil Code, of 1870 shall not apply to any proceeding brought under the provisions of R.S. 14:74.”
By such unequivocal declaration, following the decision of the Mack case which was predicated primarily on LSA-Civil Code Article 242, the Legislature manifested a clear intention that for convictions under LSA-R.S. 14:74 prior proof of paternity by legal acknowledgment or civil judgment is not a prerequisite; but that, as is recited in the statute, “In the case of an illegitimate child, evidence may be introduced in the proceedings hereunder to prove paternity or maternity.” In other words the 1954 amendment had the same effect, and it served the same purpose, as would have been accomplished by a declaration of the Legislature that: “In cases of criminal non-support of illegitimate children, it shall not be necessary to show that paternity was previously established by acknowledgment or a judgment, but such paternity may be established in the Juvenile Court.”
I respectfully dissent.