185 N.E. 64 | Ohio Ct. App. | 1933
Ora H. White was indicted, tried and convicted on a charge that being the husband of Marie E. White, a pregnant woman, he left her with intent to abandon her. He now prosecutes error to that judgment of conviction.
There is but one question in the case that we deem of any importance and that is whether the instructions to the jury were erroneous. The complaint of the instructions runs to a single sentence as follows: *332 "The question of his knowledge of her being in a pregnant condition when he left her is not material the court says to you in this case, and the rulings of the court have shown that to be the court's position."
The defendant had testified that at the time he is charged with having abandoned his wife he did not know that she was pregnant. There is thus clearly raised the question whether or not the husband, ignorant of his wife's pregnancy, is guilty of a criminal offense when he abandons her in that condition.
The section of the General Code involved is 13009, which so far as pertinent provides that whoever, being the husband of a pregnant woman, leaves with intent to abandon such pregnant woman shall be imprisoned. The statute does not in terms make guilty knowledge an essential of the crime defined. There are many cases, however, that hold guilty knowledge to be necessary for the accomplishment of a crime although the statute does not charge that the act in question was knowingly done.
In Anderson v. State, 7 Ohio, pt. 2, 250, it was held that one charged with publishing a forged contract could not be held unless he had knowledge of the forgery.
In Miller and Gibson v. State,
In Miller and Gibson v. State,
In Kilbourne v. State,
In State v. Cameron,
"Guilty knowledge is an essential ingredient of crime. Birney
v. The State,
"The instances in which it is not necessary to affirmatively aver such knowledge are those in which the declared purpose of the statute discloses the legislative intent to the contrary, as in the case of the sale of adulterated food."
In neither the Kilbourne case nor Cameron case is direct reference made to State v. Kelly,
In Zent v. State,
In the Kelly case, the Supreme Court followed the rule laid down in Commonwealth v. Murphy,
The sound doctrine underlying the rule that guilty knowledge is not required to accomplish the crime of rape with consent is that the act of the accused is at best an immoral one, and that he cannot enter upon the accomplishment of an admittedly immoral act except at his peril, and if in law his act is in fact a felony he must suffer the consequences thereof although so far as his actual knowledge was concerned he may not have known the enormity of the offense of which he is guilty. By like reasoning we take the view that a husband abandoning his wife is guilty of wrongdoing. It is a violation of his civil duty. He is charged with her support and protection. If he abandons her, he does so at his peril, and, if she be in fact at the time pregnant, though he may not have known it, he cannot plead that ignorance as a defense. He must make sure *335 of his ground when he commits the simple wrong of leaving her at all.
Section 13009 was originally a part of an act entitled "An Act to compel parents to maintain their children." (99 Ohio Laws, p. 228.) Without attempting to analyze the various sections of that act, it is sufficient to say that both the terms and title thereof disclose the legislative intent to protect children in being and unborn children from abandonment by their parents. The purpose of the act was not to penalize the moral delinquencies of parents, but it was to secure for children directly, and the public indirectly, the support which natural and civil law alike require parents to afford their children. So clearly was this the case that, although the accused might be found guilty and sentenced to imprisonment in the penitentiary, provision was made for suspending sentence to the penitentiary if the future support of the child or children was assured.
We conclude, therefore, that in this case, even more clearly than in the Kelly case, the Legislature has expressed the purpose of the act to be to compel the maintenance of children, and that, when the accused is brought within the letter of the law, he cannot exculpate himself by showing his ignorance of the character of his act.
The judgment is affirmed.
Judgment affirmed.
MIDDLETON and BLOSSER, JJ., concur.