4 N.E.2d 993 | Ohio Ct. App. | 1935
On June 12, 1935, defendant in error filed an affidavit against Russell Snyder, plaintiff in error, in the Court of Common Pleas of Stark county, Division of Domestic Relations, Juvenile Department, *371 under Section 1655, General Code, charging him with being the father of Ronald William McCoy, a minor of the age of ten weeks, whom Russell Snyder failed to support, in spite of sufficient means, to which charge plaintiff in error entered a plea of not guilty. Trial was had to the court, a jury having been waived. After all the evidence was submitted both sides rested, and the case was submitted, the court amending the affidavit by adding the language that the plaintiff in error was the father "of an illegitimate child." The court then found plaintiff in error guilty, and this proceeding is brought to reverse that finding.
There are four grounds of error urged in this case why this judgment should be reversed: First, that the finding and judgment are against the manifest weight of the evidence; second, that the record of the bastardy proceeding and the release executed in settlement thereof constituted a complete defense to this action; third, that the Juvenile Court has no jurisdiction when the prosecution is based upon an affidavit, and, fourth, that it was error for the trial court to allow an amendment to the affidavit after submission of the cause.
From an examination of the record before us, the contention that the evidence fails to establish the paternity of the child is not well taken. The record conclusively shows otherwise. The evidence of the complaining witness on the subject of paternity stands uncontradicted in the record.
On the second claimed ground of error, plaintiff in error raises the question whether defendant's exhibits 1 to 4, inclusive, the record in the bastardy proceeding, and the release executed in connection with the settlement thereof, are admissible in evidence in this proceeding. Inasmuch as no other evidence was offered on behalf of the defendant, this question becomes merged in the larger one, namely, whether a settlement of the bastardy proceedings and the release *372 executed by the complainant in connection therewith, purporting to release, discharge and save harmless the defendant from all claims which may be asserted by the complainant herein, are a bar to the prosecution of an action brought under Section 1655, General Code, for non-support of a minor illegitimate child. We are of the opinion that such a release does not constitute a defense, for the reason that Sections 12114 and 12123 of the General Code of Ohio provide, in part, as follows:
"Provided, however, that nothing in this section shall be construed as a bar to the prosecution of the accused for failure to support his illegitimate child or children under the provisions of any statute providing for prosecution and punishment for the non-support of legitimate or illegitimate children."
It was held in Pummell v. State, ex rel. Hill,
22 Ohio App. 340 ,154 N.E. 745 , as follows:
"The plain purpose of this provision is to separate and divorce the interests of the mother from those of the child, and to leave the latter's rights and the public's rights against the father wholly unaffected by the result of the action brought by the mother."
In 5 Ohio Jurisprudence, 583, Section 36, we find that satisfaction of a bastardy proceeding, and a compromise under the bastardy act, are not bars to a prosecution under Section 13008, General Code.
A prosecution of this sort for non-support is for the benefit of the public, who might be burdened with the support of the child if the parents failed to support it, and for the benefit of the child. While the mother may be the complaining witness, she has no interest in such recovery.
On the third claimed ground of error, to-wit, that the Juvenile Court has no jurisdiction over violations of Section 1655, when the prosecution is based upon an affidavit, we have to say that the Supreme Court *373
of Ohio has settled this question in the case of Webster, Supt.of Workhouse, v. State, ex rel. Altick,
On the fourth claimed ground of error, the question is raised as to whether or not it was error for the trial court, after the submission of the case and after both parties had rested, to allow the affidavit to be changed or amended. The affidavit herein, as first filed and sworn to by the complainant, charged Russell Snyder with being the father of Ronald William McCoy, a minor under the age of eighteen years. After all the evidence was in the court ordered that the affidavit be, and it was, amended in the following particulars: 1. By inserting the words "of an illegitimate child" after the word "father," and in two places, after the words "Ronald William McCoy," by changing the words "under the age of eighteen years" to the words "under the age of sixteen years."
The original affidavit was sworn to by the mother and was made before the deputy clerk of the Juvenile Court. The changes above referred to were made by the court, and after the submission of all the evidence in the case, and the affidavit, as changed, was not again verified.
This court, sitting in Richland county, Ohio, in the case ofDiebler v. State,
"An affidavit is the act of an individual, for the signing of which such individual is and holds himself or herself out to be responsible. No court or public officer has authority to force an individual to say something *374 different from what that individual actually did say or express a willingness to say."
Section 13437-7 of the General Code of Ohio provides, in part, as follows:
"An indictment or information shall not be invalid, and the trial, judgment or other proceedings stayed, arrested or affected by * * * or for other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits."
It will be noted that the makers of the above statute carefully refrained from including affidavits in the list of documents which might be amended.
It must be borne in mind that there are no common-law crimes in Ohio. They are purely statutory, and all criminal statutes must be strictly construed. There is a reason why an affidavit should not be changed, as was done in the instant case, and the right to make such a change in an affidavit should and must be distinguished from the right or power of the court to make or change an indictment or information.
An indictment is a written, legal accusation made against one, and presented by a grand jury; an information is a charge or accusation made by a court or some officer thereof, and an affidavit is a charge made and preferred by an individual.
Section 1655, General Code, under which this action was brought, provides for two separate and distinct offenses: One, for the non-support and so forth of a minor child under the age of eighteen years, and the other for the non-support and so forth of an illegitimate child under the age of sixteen years.
Another good and sufficient reason for reversing this case is that the affidavit as changed and amended was not again reverified, and the defendant or accused was never arraigned upon said affidavit; nor does the record show that he made any plea thereto, so that *375 we have this conviction upon an affidavit without a plea, arraignment or verification.
For the above reasons this cause is reversed and remanded to the Court of Common Pleas for further proceedings according to law.
Judgment reversed and cause remanded.
MONTGOMERY and SHERICK, JJ., concur.
