In Re Armstrong

Ohio Court of Appeals

In Re Armstrong

161 N.E. 225, 28 Ohio App. 66, 6 Ohio Law. Abs. 244, 1927 Ohio App. LEXIS 368

CourtOhio Court of Appeals

DecidedNovember 28, 1927

Docket3190

StatusPublished

Cited by1 cases

This text of 161 N.E. 225 (In Re Armstrong) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Armstrong, 161 N.E. 225, 28 Ohio App. 66, 6 Ohio Law. Abs. 244, 1927 Ohio App. LEXIS 368 (Ohio Ct. App. 1927).

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Opinion

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

The pertinent part of the affidavit charging the offense is in the following language: “Sáid Charles E. Armstrong being then and there the father of, and charged with the maintenance of the following four legitimate children under the age of sixteen years * * * did unlawfully and wilfully neglect and refuse to provide said children with necessary and proper home, care, food and clothing. He, the said Charles Armstrong, being then and there able, by reason of having property, by labor, or 'eahdngs, so to do, * * *”

The pertinent part of Section 13008 is: Whoever, being the father, or when charged by law with the maintenance thereof, the mother * * * living in this state, fails, neglects, or refuses to provide such child * *" * with the necessary or proper home, care, food, and clothing, shall be imprisoned, * *

A corollary to Section 13008 is Section 13008-1, whieh provides that “* * * the defendant shall he acquitted if it appear that he *245 was, because of lack of property or earnings, or the inability to “secure employment, or the physical incapacity to perform labor, unable to provide such child * * * with necessary or proper home, care, food and clothing.”

It will be noted that the language of the affidavit is the language taken from. Section 13008, with the pertinent, part of Section 13008-1 with reference to the ability to provide. The latter part of the affidavit does say that this offense is contrary to Section 12970, but that is surplusage in the affidavit, and does not allege any fact charging an offense.

Our conclusion is that the affidavit clearly brings the prosecution within, and charges the offense under Section 13008, the felony statute, and the only power of the Municipal- Court was to hold Armstrong to answer to the grand jury. That the judgment pronouncing the sentence of six months in the county jail was void and of no effect.

The writ is granted, and the applicant, Charles Armstrong, is ordered released from custody.

(Mills and Cushing, JJ., concur.)

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OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

The pertinent part of the affidavit charging the offense is in the following language: “Sáid Charles E. Armstrong being then and there the father of, and charged with the maintenance of the following four legitimate children under the age of sixteen years * * * did unlawfully and wilfully neglect and refuse to provide said children with necessary and proper home, care, food and clothing. He, the said Charles Armstrong, being then and there able, by reason of having property, by labor, or 'eahdngs, so to do, * * *”

The pertinent part of Section 13008 is: Whoever, being the father, or when charged by law with the maintenance thereof, the mother * * * living in this state, fails, neglects, or refuses to provide such child * *" * with the necessary or proper home, care, food, and clothing, shall be imprisoned, * *

A corollary to Section 13008 is Section 13008-1, whieh provides that “* * * the defendant shall he acquitted if it appear that he *245 was, because of lack of property or earnings, or the inability to “secure employment, or the physical incapacity to perform labor, unable to provide such child * * * with necessary or proper home, care, food and clothing.”

It will be noted that the language of the affidavit is the language taken from. Section 13008, with the pertinent, part of Section 13008-1 with reference to the ability to provide. The latter part of the affidavit does say that this offense is contrary to Section 12970, but that is surplusage in the affidavit, and does not allege any fact charging an offense.

Our conclusion is that the affidavit clearly brings the prosecution within, and charges the offense under Section 13008, the felony statute, and the only power of the Municipal- Court was to hold Armstrong to answer to the grand jury. That the judgment pronouncing the sentence of six months in the county jail was void and of no effect.

The writ is granted, and the applicant, Charles Armstrong, is ordered released from custody.

(Mills and Cushing, JJ., concur.)

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Bluebook (online)

161 N.E. 225, 28 Ohio App. 66, 6 Ohio Law. Abs. 244, 1927 Ohio App. LEXIS 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-armstrong-ohioctapp-1927.

Opinion

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