Opinion
Decided February 21, 1929.
Criminal law — Prosecution in juvenile court for nonsupport of illegitimate child — Not barred by payment of judgment in former bastardy proceeding — Section 12114, General Code.
Rendition of judgment in bastardy proceeding and defendant's payment of money alone to mother, where defendant did not give bond for support of child, held not bar to prosecution for failure to provide for illegitimate minor child, under Section 12114, General Code, as amended by 110 Ohio Laws, 297.
ERROR: Court of Appeals for Athens county.
Messrs. Woolley Rowland, for plaintiff in error.
Mr. A.B. Wells, for defendant in error.
Plaintiff in error, Herman Earich, was convicted in the juvenile court for failure to provide for his illegitimate minor child. The record shows that in July, 1920, there was a bastardy proceeding instituted against him in a justice's court, which was certified to the common pleas court of Athens county, and the following entry appears upon the journal of the latter court:
"This day came the defendant, Herman Earich, and confessed in court that the charge of the plaintiff herein is true. He is therefore adjudged the reputed father of said bastard child and that he stand charged with its maintenance in the sum of five hundred dollars, which said sum has this day been paid, and that he pay the costs of prosecution taxed at $15.75."
The juvenile court held that this finding and judgment in the bastardy proceeding was no bar to the charge against Earich for failure to provide, and he was found guilty as charged in the complaint.
This proceeding in error is submitted to this court on the theory that, if the decision of this court in the case of Hendrix v. State, 22 Ohio App. 255, 154 N.E. 342, is applicable, the judgment of the juvenile court should be affirmed. We have been unable to find any reported case where the facts are parallel with those in the case at bar. No cases hold that the mere rendition of a judgment in a bastardy proceeding, and the payment of money alone to the mother, is a bar to a prosecution for failure to provide. In the Hendrix case, supra, the court found that the defendant did not fully carry out and comply with the terms of the compromise, and had never delivered to the prosecutrix in the bastardy proceeding the personal property which he agreed to deliver. In the case of McKelvy v. State, 87 Ohio St. 1, 99 N.E. 1076, decided prior to the amendment of Section 12114, General Code, the second paragraph of the syllabus holds that, where a bastardy proceeding has been compromised under Section 12114, General Code, and all of the provisions of the compromise have been complied with and carried out by the accused, it constitutes a complete bar to a charge of failure to support the illegitimate child. Under the compromise effected in the McKelvy case there was paid the mother $350 in full satisfaction of all claims, together with costs, and a bond also was given in the sum of $200 for the maintenance of the child, with sufficient sureties, to the approval of the justice.
The plaintiff in error in the present case not having given bond for the support of the child in the bastardy proceeding, and having admitted his failure to provide, as charged in the complaint, which is being prosecuted under favor of Section 12114, General Code, as now amended (110 Ohio Laws, 297), the judgment in the bastardy proceeding is no defense to the offense charged against him.
Judgment affirmed.
MIDDLETON, P.J., and MAUCK, J., concur.