
    Pummell v. The State, ex rel. Hill.
    
      Bastardy — Proceedings for sole benefit of mother- — Section 12123, General Code (110 O. L., 296) — Proof of sum necessary for mother’s support and expenses — Absence of such evidence on trial to jury — Raises no presumption that inquiry not made by court — Prosecution of father for failure to support child not barred — Charge to jury — Protection of state and child’s support not involved, when.
    
    1. Under Section 12123, General Code, as amended by Act April, 1923 (110 Ohio Laws, 296), bastardy proceeding is authorized for sole benefit of the mother, and is wholly exclusive in that respect.
    2. In a trial before a jury on a complaint in bastardy under Section 12123, General Code, as amended by the Act of April 5, 1923 (110 Ohio Laws, 296), absence of evidence in the record in respect to the sum necessary for the support of the mother and her expenses during pregnancy and at childbirth raises no presumption that such inquiry was not made after the verdict was returned and prior to the rendition of the judgment fixing said sum.
    3. Since, under Section 12123, General Code, as amended by Act April, 1923 (110 Ohio Laws, 296), bastardy complaint by mother is not bar to prosecution of father for failure to support child, charge that proceeding by mother was not wholly in her interest but was also to protect state from care of child held prejudicial error.
    (Decided November 3, 1926.)
    Error: Court of Appeals for Vinton county.
    
      Mr. Edwin D. Ricketts, for plaintiff in error.
    
      Mr. O. E. Vollenweider, for defendant in error.
   Middleton, J.

The plaintiff in error was charged in the court of common pleas with a complaint in bastardy made by one Goldie Hill. He was tried by a jury on said complaint and found guilty. Thereupon the court adjudged him to be the putative father of the bastard child, and rendered a judgment against him in favor of said complainant for the sum of $200. He claims in this proceeding that many errors intervened in the trial to his substantial prejudice, and asks that the judgment aforesaid be reversed. He contends, first, that the trial court rendered the judgment without hearing any evidence in respect to the amount “necessary for the support, maintenance, and expenses” of the complainant, caused by her pregnancy and childbirth, together with the costs of prosecution, and, further, that the court at no time inquired into such matters prior to the rendition of the judgment.

Proceedings in bastardy are wholly statutory,. and, since the sweeping amendment made by the Legislature in 1923 (110 Ohio Laws, 296), and particularly in the provisions of Section 12123, General Code, an entirely different aspect is given to such proceedings. Prior to said amendment the only purpose of the statutory law regulating such proceedings was to provide, for the maintenance of the unfortunate bastard, and fix directly on its putative father the responsibility for such support. In Perkins v. Mobley, 4 Ohio St., 668, the purpose of the law as it then stood was clearly expressed by Judge Ranney, who, in referring to the legal rights of a mother in such proceedings, said at page 672:

“If the suit could be said to be prosecuted for her benefit, and if the remedy was designed to afford her redress, it would seem clear that she could settle the controversy, and effectually bar herself by receiving such satisfaction as she had agreed to accept. But nothing could be further from the purpose of the statute. The law gives her no remedy against her guilty paramour. It regards them as equally in fault, and is only solicitous to provide for the support of the innocent offspring of their guilt. Without the statute, the father could not be reached; his liability is created by the statute, rests upon the moral obligation he is under to support his child, and the whole object of the proceeding is answered, when the paternity of the child is judicially ascertained, and this moral duty is enforced in such manner as to secure the public against the liability of providing for the support of the child.”

While the protection of the child was the thing sought by such proceedings, that result as a matter of fact was not accomplished in many cases. Indeed, it may be said that ordinarily the mother was the sole beneficiary of the judgment rendered, and it was not unusual that the child subsequently became a public charge. This situation, together with the enactment of many criminal statutes, imposing upon the father of an illegitimate as well as a legitimate child the duty of supporting such child, doubtless led to the amendment of the statutes aforesaid. By such amendment a bastardy proceeding is now authorized for the sole benefit of the mother and is wholly exclusive in that respect. By the provisions of Section 12123, General Code, as amended, when the defendant is found guilty by a jury under a complaint made by the mother, the court must adjudge him to be the reputed father of the bastard child and “shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with costs of prosecution. ’ ’

It is under this provision that it is contended here that the court made such finding without hearing any evidence and without any inquiry into the circumstances surrounding the complainant. This fact, if true, does not affirmatively appear in the record. While there is a complete absence of all evidence on these matters in the bill of exceptions, it was not necessary, and indeed would not have been proper, to submit such evidence to the jury. The jury was not concerned in the subsequent judgment to be rendered by the court. It was not its duty to determine any fact connected with the amount of such judgment. It follows that the absence of any evidence in the record of the trial to the jury in respect to these matters raises no presumption that no inquiry whatever was made, and particularly that the inquiry was not made after the verdict and prior to the rendition of the judgment, which was the only proper time for the court to receive the evidence and make such inquiry. For this reason this complaint is not available at this time to the plaintiff in error.

There is, however, a substantial basis for another error urged in this proceeding.

Among the provisions of Section 12123, as amended, is the following:' “Provided, however, that nothing in this section shall be construed as a bar to the prosecution of the accused for failure to support his illegitimate cMld or cMldren under the provisions of any statute providing for prosecution and punishment for nonsupport of legitimate or illegitimate children.”

The plain purpose of this provision is to separate and divorce the interests of the mother from those of the child, and to leave the latter’s rights and the public’s rights against the father wholly unaffected by the result of the action brought by the mother.

The court in its general charge to the’ jury said: “This proceeding is a statutory remedy provided by our law, not wholly in the interests of and for the benefit of the prosecutrix, but another object and purpose is to protect the state and the county against the possible necessity to care for a child that may be illegitimate.”

This instruction was not a correct statement of the law, and was prejudicial to the defendant’s rights. Neither the rights of the state or county in respect to the future care of the child were affected by the verdict of the jury or the judgment rendered by the court. The vice of this instruction lies in the fact that it is well understood that many jurors regard the matter of the child’s support as the most important factor in bastardy proceedings, and are frequently influenced by that fact in determining the guilt of one accused of bastardy. That element was not in the case, and it was an improper instruction which requires a reversal of the judgment.

The remaining complaints are overruled.

The judgment is reversed, for the reason indicated, and the case remanded to the court of common pleas for further proceedings according to law.

Judgment reversed and cause remanded.

Mauck, P. J., and Sayre, J., concur.  