
    The State of Ohio v. Teal.
    
      Abandonment of child by parent — Prosecution under Section 3140-2, Revised Statutes — State need not prove demand on father, vahen.
    
    In a prosecution under Section 3140-2, Revised Statutes, against a father for failure to support his child, he being able to do so, it is not necessary for the state to prove that a demand was - made upon the father for the performance of the duty enjoined by the statute.
    (No. 10677
    Decided October 22, 1907.)
    Exception to the decision of the Court of Common Pleas of Perry County.
    
      In the court of common pleas Teal was placed on trial upon an indictment charging that “being the father of-, an illegitimate child under the age of sixteen years, to-wit, the age of nine months, then and there living in said county, did then and there during Che term of the life of said child neglect and refuse to provide it with the necessary and proper home, care, food and clothing, she not being an inmate of a county or district children’s home, and the said Teal being able by means of his personal service, labor and earning's to provide said child with the necessary and proper care,” etc. The state offered evidence proving all the facts charged in the indictment, but not showing that any demand for such support had been made upon Teal, and at the conclusion of the state’s evidence counsel for the defendant moved the court to direct the jury to return a verdict for the defendant “for the reason that no proof whatever had been adduced or offered by the state, showing or tending to show that any demand for support had ever been made upon the defendant.” This motion was sustained by the court and the jury following that direction returned a verdict for the defendant. To the instruction so given, the prosecuting attorney excepted and brings the case here under the statute for the settlement of law for the government of future cases.
    
      Mr. Tom 0. Crossan, prosecuting attorney, and Mr. T. D. Price, for plaintiff in error,
    cited and commented upon the following authorities: Ogg v. State, Ohio St., 59; Bowen v. State, 56 Ohio St., 235; State v. Veres, 75 Ohio St., 138; Section 3110, Revised Statutes.
    
      Mr. T. M.' Potter, for defendant in error,
    cited and commented upon the following authorities: Bowen v. State, 56 Ohio St., 235; State v. Stouffer, 65 Ohio St., 47.
   By the Court.

The indictment is under Section 3140-2, Revised Statutes, whose pertinent provisions are that “the father of a legitimate or illegitimate child under sixteen years of age living in this state, who, being able, shall neglect or refuse to provide such child with necessary and proper home, care, food and clothing, etc., shall upon conviction be deemed guilty of a felony and punished by imprisonment in the penitentiary for not more than three years or less than one year or in a county jail,” etc. It is to be observed that the statute does not by any term which it employs require that a demand shall be made upon the father for the performance of the duty enjoined by the statute. Nor, if effect is given to all the terms of the statute, does it appear that such demand is,required by implication. The view of the subject taken by the court of common pleas seems plainly to exclude from consideration one of the terms of the statute, the provision being that the guilt attaches to one who “shall neglect or refuse to provide,” etc. If the offense consisted alone in refusing to make the required provision, it might very well be said that a demand is required by implication since there could not be a refusal without a demand. But the terms of the statute are alternative, and mere neglect to which a demand is not necessary is as plainly an omission of the required duty as is a refusal.

It is true that in The State v. Stouffer, 65 Ohio St., 47, it was stated in the syllabus that the refusal or neglect of the father after demand to furnish the child with proper support, he being able to do so, renders him amenable to the provisions of the statute; but the question here presented was not presented or considered in that case, for in that case it affirmatively appeared that a demand for such support of the child had been made upon the father by its mother, and naturally the statement of the law was limited to the requirements of the case. That case is, therefore, no authority whatever for the instruction given by the court of common pleas in the present case, and the instruction seems plainly to have excluded from consideration one term of the statute.

The exception is sustained.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.  