
    The State of Ohio v. Stouffer.
    
      Father not absolved from care of minor child — Because divorced wife has custody — Effect of father’s refusal to support such child — Bection SVfi-2, Rev. Btat.
    
    The father is not absolved from his obligation to support his minor child under sixteen years of age, because his divorced . ■ wife, having its custody, has provided it with sufficient support; and his refusal or neglect, after demand, to furnish the child with proper support, he being able to do so, renders him amenable to the provisions of section 3140-2 of the Revised Statutes.
    (Decided June 4, 1901.)
    Exceptions by the Prosecuting Attorney to the ruling of the Court of Common Pleas of Putnam county.
    At the November term, 1900, of the court of common pleas of Putnam county, John Stouffer was placed on trial upon an indictment charging him with neglect and failure to support his minor child under sixteen years of age. At the close of the state’s evidence, the court, on motion of the defendant, instructed the jury to return a verdict of acquittal, which ivas accordingly done. To that ruling of the court the prosecutor took exception, and a bill of exceptions showing all the. evidence was duly taken, which on leave granted has been filed in this court, for determination upon the question raised.
    
      G. M. Bisser, prosecuting attorney, for the state.
    
      John P. Badly, appointed by the court of common pleas, contra. _-
   By the Court :

The statute upon which the indictment is founded,, section 3140-2, provides that: “The father, or when charged by law with the maintainance thereof, the mother, of a legitimate or illegitimate child or children under sixteen years of age, living in this state, who being able, either by reason of having means, or by personal services, labor or earnings, shall neglect or refuse to provide such child or children with necessary and proper home, care, food and clothing, shall be deemed guilty of a felony,” and on conviction be punished as therein provided.' The evidence given on the trial by the state, which is all set out in the bill of exceptions, shows that the defendant was the father of the child named in the indictment, and its mother who had obtained a divorce from him had been given its custody by the court, but no alimony; that the defendant was able to furnish the child the support required by the statute, but refused,. after demand by the wife, to do so. It also shows that up to the time of such demand and the finding of the indictment the mother and her parents had supplied the child with a comfortable home, and necessary food and clothing, and it was updn that ground, and that alone, that the court directed an acquittal. We think the court erred in that ruling. It was plainly the duty of the defendant to support the child; and the fact that the divorced wife, and her parents, had prior to the indictment kept the child from want, did not absolve him from his obligation in that regard. A refusal or neglect to provide the required support after demand was made upon him to do so, rendered him amenable to the provisions of the criminal statute.

Exceptions sustained.

Minshall, C. •!., Williams, Burket, Spear, Shauck and Davis, JJ., concur.  