
    Bowen v. The State.
    
      Support of child — Pather liable though separated wife agrees to care jor — Act of April 16, 1890.
    
    It is not a defense to a prosecution under the act of April 16, 1890, (87 O. L. 216), that an agreement of separation was entered into by the accused and Ms wife, by which the latter, who was given the custody of their minor children, agreed for a valuable consideration to furnish them all proper support, and that after the mother became unable to support the children the accused offered to support them if she would surrender their custodv to him, which she refused to do
    (Decided March 30, 1897.)
    Error to the Circuit Court of Wood county.
    The plaintiff in error was prosecuted on information in the probate court of Wood county, for a violation of the act of April 16, 1890 (87 O. L. 216), to prevent abandonment and pauperism, which provides that: “The father, or when charged by law with the maintenance 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 earning’s, 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 misdemeanor and punished as therein provided.
    The accused contended he was not amenable to the law, because under an agreement of separation entered into by him and his wife, the latter was given the custody of the children, and for a sufficient consideration agreed to keep and maintain them without any expense to him. The agreement contained the stipulation that if the wife should neglect or refuse to provide for the children, or should be unable to do so, the husband should have the right and power to take them from her control and care, and keep them himself. It _ appeared on the trial that the mother had become unable to support the children, and applied to the township trustees for the means of support; and the father on being informed of those facts, offered to take the children and support them, if they were given into his custody. The mother refused to surrender them, and the accused refused to support them; and his contention is that, under these circumstances he was not bound to support them, nor guilty of a violation of the statute. The plaintiff in error was convicted and sentenced, and the judgment was affirmed in the circuit court.
    
      Baldwin <& Harrington, for plaintiff in error.
    The prosecution is had under the act of April 16, 1890. 87 O. L. 216.
    The offense consists in the neglect or refusal of the defendant to provide his children with necessary and proper home, care, food and clothing.
    There is no evidence in the record showing, or tending to show, either neglect or refusal.
    The neglect of a father, having the means and opportunity to provide for his offspring, would be an offense malum in se.
    
    
      We believe there is no exception to the rule, that in offenses malum in se there must be some act of volition, purpose or design on the part of the accused to do or omit to do the thing for which punishment is prescribed. A person cannot be unconsciously guilty of the commission of a crime wrong in itself.
    
      The articles of separation and provision for support of the children, was authorized by law. — R. S. 3113.
    The mother was then “charged by law with the maintenance of the children,” at least for so long as she was able to support the children — and she by express provision of the statute would be amenable for neglect. The arrangement by which the custody was given to the mother being lawful, and confessedly done in good faith, certainly, no neglect can be predicated on that.
    The father on all occasions asserted his readiness to support the children if given into his custody. It was Ms right to have the custody both under the contract with the mother, and by the dictates of the law of nature. This right is forcibly expressed by this court.
    If this rule obtains in ease of mere civil liability with how much greater force and reason should it be applied in a criminal prosecution involving the same question of parental liability. People v. Pettitt, 74 N. Y., 320; People v. Nachr, 1 N. Y, Grim. Rep., 513; S. C. 4 Lawson’s Grim. Defenses 84.
    It should be borne in mind that Bowen was not shown to be an improper person to have the custody of his children. He never had in any manner forfeited his natural right to their custody, and no adjudication had been made, curtailing' that right in any degree.
    It has been urged that the father’s obligation to support his minor children, under this statute, is an absolute one, and for a failure there can be no excuse or justification. Such in ter p tation would lead to ridiculous results. Baldioi' . Foster, 138 Mass., 449; Reginas. Vann, 4 Lawson’s Crim. Def. 74.
    
      There is another and we think conclusive reason why this conviction is wrong. There is no causal connection between the action or conduct of the accused and the objects of the crime. It is the act of the mother in refusing to allow the father to provide them with a home and necessaries, which places them in that unfortunate situation. This doctrine is elementary and is laid down and supported by precedents in 1st Wharton’s Crim. Law, section 160.
    
      Murphy <& McClelland, for defendant in error.
    The law casts upon parents certain rights and duties-, a parent has the right to the society, obedience, and earnings of his minor children, of these rights he can divest himself by his own act. It is the duty of a parent to educate and maintain his minor children. Now, will a father be allowed, by reason of some contract which he may enter into with a third person, to wholly abandon his offspring, and to divest himself of all the duties pertaining to them, which has been cast upon him by law? We think not. We hold that no person can by any act of his own, or by mere agreement with some third party, free and divest himself of a duty which the law has placed upon him.
    By the terms of the ag-reement of separation entered into between Bowen and his wife, whenever the mother failed to provide for the children, Bowen was entitled to take possession of, and was to care for them. It was Bowen’s duty to immediately take steps to provide for his children, when apprised of the fact that they were in destitute circumstances. The record shows that Bowen did not even attempt to get possession of his children, or to furnish them with any of the necessaries of life. Clark v. Bayer, 32 Ohio St., 229; Pretzinger ~sr. Pretzinger, 45 Ohio St., 452.
   By the Court :

The duty is primarily devolved on the father to support his minor children out of his property, or by his labor. Revised Statutes, section 3110. This is a duty which he owes to the state, as well as to his children; and he has no more right to allow them to become a public charge than he has to allow them to suffer for want of proper care and sustenance. The design of the statute, under which the plaintiff in error was prosecuted, was to enforce, as far as practical, the fulfillment of the father’s duty to the public; and it would obviously fail of its purpose if he could, by agreement with another, relieve himself from responsibility for his omission to provide the support for his children which the statute requires; for he might so contract with wholly irresponsible parties. He undoubtedly may contract with another person for the maintenance of his children, if he choses to do so, and may exact such security for the performance of the agreement' as he may deem necessary, or be able to obtain, and in that way protect himself as against the other contracting party from further expense in that behalf. But the duty he owes the public of saving it from the expense of supporting his children, is personal and continuing, and cannot be affected by any agreement he may make with another. He must answer to the state for his omission of that duty, and look to the other contracting party for any breach of the contract.

Judgment affirmed.  