
    Runnebaum v. The State of Ohio.
    
      Bastardy—Failure to provide for illegitimate child—Sections 1S008 and 13008-1, General Code—State not required to prove defendant’s ability to provide—Charge to jury—Defendant cannot complain of charge favorable to him.
    
    1. In prosecution under Sections 13008 and 13008-1, General Code, for failure to provide for illegitimate child under 16, state need not prove property owned by defendant or his earning capacity; inability of father to provide for child being matter of defense.
    2. In prosecution under Sections 13008 and 13008-1, General Code, for failure to provide for illegitimate child under 16, evidence held to warrant finding that defendant was able to provide for his child.
    3. In prosecution under Sections 13008 and 13008-1, General Code, for failure to provide for illegitimate child under 16, charge requiring state to prove beyond reasonable doubt that defendant was able to provide for child before he could be convicted, if error, was favorable to defendant, and cannot be complained of by him.
    (Decided November 8, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. William R. Collins, for plaintiff in error.
    
      Mr. Charles 8. Bell, prosecuting attorney, and Mr. Raymond J. Kunkel, for defendant in error.
   Buohwalteb, P. J.

John Runnebaum was indicted, tried, and found guilty on the charge of failing to provide for an illegitimate child under the age of 16 years.

The sole question raised in these proceedings in error is whether or not the state of Ohio, on the record, established the essential elements necessary for conviction; it being claimed that the state failed to prove the defendant “able, by reason of prop-» erty, or by labor or earnings, to provide such child with necessary home, food, and clothing.”

Defendant was prosecuted under Section 13008, (General Code, which provides:

“Whoever, being the father, or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child under sixteen years of age, or the husband of a pregnant woman, living in this state, fails, neglects or refuses to provide such child or such woman with the 'necessary or proper home, care, food and clothing, shall be imprisoned in a jail or 'workhouse at hard labor not less than six months nor more than one year, or in the penitentiary not less than one year nor more than three years.”

The above section sets forth what shall constitute the offense, and the penalty. Following it is Section 13008-1, which provides:

“Upon trial for any offense defined in the foregoing section, the defendant shall be acquitted if it appear that he was, because of lack of property or earnings, or the inability to secure employment, or the physical incapacity to perform labor, unable to provide such child or such woman with necessary or proper home, care, food and clothing. ’ ’

This section sets forth that the offense is defined in the preceding section, and it provides an adequate defense in the event of the inability of the father to provide for such child.

We do not consider that it is incumbent on the state to prove the property owned by the parent, charged with the maintenance of the child, nor his earning capacity. It is significant that the original section of the statutes, 99 Ohio Laws, 228, which was amended by enactment of Section 13008, General Code, on March 27, 1923, 110 Ohio Laws, 7, did contain the provision that the one charged by law with the maintenance of the child should be able, by reason of property, or by labor or earnings, to provide for such child. In view of the amendment, the ability to provide is made a matter of defense. However, the evidence showed that the defendant, now plaintiff in error, was working, having a paper route and owning a truck, and that he delivered various advertising matter and racing records. There was nothing which in any way showed him to be physically incapable of earning sufficient money to support the child. No testimony was offered in his behalf to show such inability, and in view of the evidence the jury was fully warranted in finding him able to provide for his child.

The court in the charge stated: “"Whoever, being the father, etc., being able by reason of property, or by labor or earnings to provide such child * * * with necessary or proper home, care, food, and clothing, neglects or refuses so to do, shall be guilty of failure to provide.” And also: “Before you would be warranted in returning a verdict of guilty against this defendant, the state must prove, beyond a reasonable doubt, the following elemental and material facts: * * * That he was able to provide, if he saw fit; that he has failed to provide the proper home and the proper care, and the proper food, and the proper clothing.”

And the court further charged that the burden rested upon the state to satisfy tÉe jurors, beyond a reasonable doubt, of the essential elements as outlined.

We consider that if the court in charging as it did was in error, it committed error prejudicial to the state and not to plaintiff in error.

The judgment of the court of common pleas will be affirmed.

Judgment affirmeid.

Hamilton and Cushing, JJ., concur.  