
    In re Armstrong.
    
      (Decided November 28, 1927.)
    
      Miss Gladys Sutton, for applicant.
    
      Mr. Charles P. Taft, 2d, prosecuting attorney, opposed to application.
    
      Mr. John M. Benner, for Ohio Humane Society.
   Hamilton, P. J.

This is an original action in habeas corpus in this court. Charles Armstrong makes application for a writ, seeking a release from a sentence, given by the municipal court of Cincinnati, of sis months in the Hamilton county jail. The sentence was pronounced by the municipal court upon a conviction based upon an affidavit, charging in substance the failure to provide for his minor children.

It is claimed that the judgment sentencing the applicant to the county jail was void, for the reason that under the affidavit charging the offense the municipal court was without power to sentence him, and its power was limited to holding him to answer to the grand jury. The question arises from the fact that Section 12970, General Code, makes failure to provide a misdemeanor, while Section 13008, passed subsequent to the enactment of Section 12970, makes failure to provide a felony.

The application presents two questions of law:

(1) Poes the affidavit charge the offense under the misdemeanor Section 12970, or does it charge an offense under the felony Section 13008 ?

(2) Does Section 13008 (passed subsequent to Section 12970) repeal that part of Section 12970 which relates to failure to provide?

We have but to examine the wording of the affidavit to determine the section under which the prosecution was brought. The pertinent part of Section 12970 is:

“Whoever, * * * being the parent * * * of a child under the age of sixteen years, * * * willfully, unlawfully, or negligently fails to furnish it necessary and proper food, clothing or shelter, shall be fined * * *.”

The pertinent part of the affidavit charging the offense is in the following language

“Said Charles E. Armstrong being then and there the father of, and charged with the maintenance of the following four legitimate children under the age of sixteen years, * * * did unlawfully and willfully neglect and refuse to provide said children with necessary and proper home, care, food, and clothing, he, the said Charles Armstrong, being then and ,tthere able, by reason of having property, by labor, or earnings so to do.”

If there was no other statute making failure to provide an offense, a 'Strained construction of the language in the affidavit might be held to charge an offense denounced by Section 12970. But we are not determining what is necessary in an affidavit to charge an offense; we are examining the affidavit to determine under which section of the statute the offense is charged in the affidavit.

The pertinent part of Section 13008 is:

“Whoever, being the father, or when charged by law with the maintenance thereof, the mother, * * * living in this state, fails, neglects, or refuses to provide such child * * * with the necessary or proper home, care, food and clothing, shall be imprisoned * *

A corollary to Section 13008 is Section 13008-1, which provides that:

“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 * * * with necessary or proper home, care, food and clothing.”1

It will be noted that the language of the affidavit is the language taken from Section 13008, with the pertinent part of Section 13008-1 with reference to the ability to provide. The latter part of the affidavit does say that this offense is contrary to Section 12970, but that is surplusage in the affidavit, and does not allege any fact charging an offense.

Our conclusion is that the affidavit clearly brings the prosecution within, and charges the offense-under, Section 13008, the felony statute, arid the only power of the municipal court was to hold Armstrong to answer to the grand jury; that the judgment pronouncing the sentence of six months in the' county jail was void and of no effect. This conclusion makes it unnecessary to determine the question whether that part of Section 12970 which relates to failure to provide is repealed by the felony statute, Section 13008, and we do not decide that question.

The writ is granted,' and the applicant, Charles Armstrong, is ordered released from custody.

Writ allowed.

Mills and Cushing, JJ., concur.  