Opinion
Decided May 25, 1926.
Bastardy — Proceeding compromised before amendment of Section 12114, General Code — Prosecution thereafter for failure to support child, not barred — Section 13008, General Code.
A compromise with the mother of an illegitimate child in a bastardy proceeding under Section 12114, General Code, made prior to the amendment of that section in 1923 (110 Ohio Laws, p. 297), is not a bar to a prosecution of the father for failure to provide livelihood under Section 13008, General Code, where such failure was subsequent to the amendment.
ERROR: Court of Appeals for Brown county.
Mr. E.R. Young, and Messrs. Bagby Bagby, for plaintiff in error.
Mr. E.B. Stivers, and Mr. O.E. Young, for defendant in error.
Claude Hendrix was convicted under Section 13008, General Code, of the offense of failing to provide his illegitimate child with a livelihood from May 21, 1924, to May 7, 1925. He now seeks a reversal of that judgment of conviction and assigns a number of grounds therefor.
The accused did not undertake to deny his paternity of the child in question, nor did he make any claim that he had supported such child during the time mentioned in the indictment. The defense which he sought to interpose by pleas in bar and abatement, and by defense before the jury, was that in 1921 he had been arrested in a proceeding in bastardy, and in that proceeding had made a compromise with the mother of the child, according to the provisions of Section 12114, General Code, and that that compromise constituted an effective bar to this criminal proceeding under Section 13008, General Code. It is unnecessary to determine when was the most appropriate time to raise this defense, or what was the most appropriate method, inasmuch as we are of the opinion that, under the facts disclosed by the record, this was not an effective defense, however and whenever raised.
The accused relied and still relies upon the second paragraph of the syllabus in McKelvy v. State, 87 Ohio St. 1, 99 N.E. 1076, holding that where a bastardy proceeding has been compromised in full compliance with Section 12114, and all the provisions of such compromise have been fully complied with, a complete bar arises to a subsequent prosecution under Section 13008. In his instructions to the jury the trial court submitted as part thereof the provisions of Section 12114, as that section read prior to its amendment in 1923, 110 Ohio Laws, 297. The amendment referred to was clearly adopted to avoid the effect of the McKelvy case. The trial court may have been of the view, and counsel for plaintiff in error may now contend, although such contention has not been made in the brief filed with us, that this amendment could not impair the effect of the compromise made in the bastardy proceeding prior to 1923. We cannot adopt that view of the amendment, however. It seems to us entirely competent for the General Assembly to say that notwithstanding the fact that the father of an illegitimate child has made provision for such child through his composition of his difficulties with the child's mother he shall nevertheless be required to support such child, under the penalties fixed by Section 13008, General Code. We are of the view, therefore, that after the amendment of 1923 became effective a compromise made under the provisions of Section 12114 only constituted a bar to prosecution under Section 13008, if such violation of the latter section occurred previous to the change in the law, and that after the amendment of 1923 one violating the provisions of Section 13008 could not invoke as a bar to prosecution under that section the compromise that the General Assembly had theretofore decided was no longer effective.
However this may be, the holding in the McKelvy case was that the compromise in bastardy constituted a bar to subsequent prosecution under Section 13008 only when "all the provisions of the compromise have been complied with and carried out by the defendant." It affirmatively appears in this case that the defendant did not fully carry out or comply with the terms of that compromise because he never delivered to the prosecutrix in the bastardy proceeding the personal property which he agreed to deliver.
It follows that the accused had no adequate defense, and that, if there were any contradictions in the court's charge, or errors therein, such errors were because the court was presenting the case to the jury in too favorable a light for the accused. He cannot, of course, be heard to complain of errors that were favorable rather than prejudicial to him.
Judgment affirmed.
SAYRE and MIDDLETON, JJ., concur.