Dean v. State , 5 Ohio Law. Abs. 8 ( 1926 )

PUNK, J.

Walter Dean was indicted under 13003 GC. for the non-support of an illegitimate child. Trial was had in the Summit Common Pleas and a verdict returned against him. A motion for a new trial being overruled, error seeking reversal was taken to this court.

The only defense of Dean in the court below was a contract entered into during the pen-dency of the bastardy proceedings, wherein certain provisions were made for the payment of money to the mother and as to the care and control of the child. The mother afterwards refused to abide by the agreement and the low- . er court refused to allow any evidence or testimony upon the contract. Upon this question of error the Court of Appeals held:

1. The provisions of the code for the maintenance of minors, under which Dean was convicted are designed as far as practical, to enforce the fulfillment of the fathers duty to the public to provide, support, and care for minor children.

2. This duty is primarily devolved upon the father and is personal and continuous, and cannot he affected by any agreement he may make with the mother or any person in an effort to shift the responsibility.

3. The code would fail of its purpose if I19 could relieve himself of responsibility by contract, as he might contract with wholly irresponsible persons.

4. The father must therefore answer to the state for his omission of that duty and look to such other contracting party for any breach of such a contract.

6. The contract and testimony of Dean as to his ability to comply with it, was properly excluded from the evidence by the court below.

Judgment affirmed.

(Pardee, PJ., and aWshburn, J., concur.)