Ogg v. Ohio

Decision Date31 October 1905
Docket Number9653
Citation75 N.E. 943,73 Ohio St. 59
PartiesOgg v. The State Of Ohio.
CourtOhio Supreme Court

Failure to provide for illegitimate child - Section 3140.2, Revised statutes - Allegation as to previous proceedings under bastardy act.

An indictment under section 3140-2, Revised Statutes, for failure to provide for an illegitimate child under sixteen years of age need not allege that in a previous proceeding under the bastardy act the defendant had been adjudged to be the reputed father of such child, nor is evidence of such former adjudication necessary to a valid conviction.

Ives v. McNicoll, 59 Ohio St. 418; Kellogg, Treas. v. Ety, 15 Ohio St. 65; State v. Orr et al., 16 Ohio St. 522; Carter v. Jennings, 24 Ohio St. 182; Rammelsberg et al. v. Mitchell & Lape, 29 Ohio St. 36; Darling et al. v. Peck et al., 15 Ohio 71; Railroad v. O'Harra 48 Ohio St. 351; Feuchter v. Keyl et al., 48 Ohio St. 368; Gee v. State, 60 Ohio St. 485; Shannon v. People, 5 Mich. 71; 305 Ia. 547; Baker v. State, 30 Ala. 521; Marr v. Marr, 110 N.Y. 61; secs. 3140-2 and 7019, Rev. Stat.

BY THE COURT.

Plaintiff in error was indicted at the November term, 1904, of the common pleas court of Perry county under section 3140-2 of the Revised Statutes for having failed to provide his illegitimate child under the age of sixteen years with proper care, food and clothing from the twentieth of January, 1903 to the date of the indictment. The indictment did not charge that in proceedings under the bastardy act Ogg had been adjudged to be the reputed father of the child, and upon that ground the sufficiency of the indictment was challenged in the court of common pleas where its sufficiency was sustained. Defendant then entered a plea of not guilty and was convicted without any evidence showing such adjudication under the bastardy act. His motion for a new trial was overruled and sentence pronounced against him in accordance with the verdict. He then filed a petition in error in the circuit court where the judgment of the court of common pleas was affirmed.

The view urged upon us by counsel for the plaintiff in error is that in the absence of such allegation and proof there can be no valid conviction. The statute under which the indictment was found and conviction had affords no support for the point now made, for it does not suggest such ad6judication as a condition of guilt. 'While the two acts contain provisions which contemplate the support of an illegitimate child, the bastardy act also contains provisions for the benefit of the mother. Proceedings under that act are instituted by her and are in a large measure controlled by her. Proceedings under the act here involved are instituted and maintained by the state as against a purely public offense. The relation of the statutes does not seem to support the point urged against the validity of the conviction.

The judgments of the courts below seem to be fully supported by Gee...

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