Bowen v. The State.

There is another and we think conclusive reason why this conviction is wrong. There is no causal connection between the action or conduct of the accused and the objects of the crime. It is the act of the mother in refusing to allow the father to provide them with a home and necessaries, which places them in that unfortunate situation. This doctrine is elementary and is laid down and supported by precedents in 1st Wharton's Crim. Law, section 160.

Murphy & Me Clelland, for defendant in error.

The law casts upon parents certain rights and duties; a parent has the right to the society, obedience, and earnings of his minor children, of these rights he can divest himself by his own act. It is the duty of a parent to educate and maintain his minor children. Now, will a father be allowed, by reason of some contract which he may enter into with a third person, to wholly abandon his offspring, and to divest himself of all the duties pertaining to them, which has been cast upon him by law? We think not. We hold that no person can by any act of his own, or by mere agreement with some third party, free and divest himself of a duty which the law has placed upon him.

By the terms of the agreement of separation entered into between Bowen and his wife, whenever the mother failed to provide for the children, Bowen was entitled to take possession of, and was to care for them. It was Bowen's duty to immediately take steps to provide for his children, when apprised of the fact that they were in destitute circumstances. The record shows that Bowen did not even attempt to get possession of his children, or to furnish them with any of

Bowen v. The State.

the necessaries of life. Clark v. Bayer, 32 Ohio St., 229; Pretzinger v. Pretzinger, 45 Ohio St., 452.

BY THE COURT:

The duty is primarily devolved on the father to support his minor children out of his property, or by his labor. Revised Statutes, section 3110. This is a duty which he owes to the state, as well as to his children; and he has no more right to allow them to become a public charge than he has to allow them to suffer for want of proper care and sustenance. The design of the statute, under which the plaintiff in error was prosecuted, was to enforce, as far as practical, the fulfillment of the father's duty to the public; and it would obviously fail of its purpose if he could, by agreement with another, relieve himself from responsibility for his omission to provide the support for his children which the statute requires; for he might so contract with wholly irresponsible parties. He undoubtedly may contract with another person for the maintenance of his children, if he choses to do so, and may exact such security for the performance of the agreement as he may deem necessary, or be able to obtain, and in that way protect himself as against the other contracting party from further expense in that behalf. But the duty he owes the public of saving it from the expense of supporting his children, is personal and continuing, and cannot be affected by any agreement he may make with another. make with another. He must answer

to the state for his omission of that duty, and look to the other contracting party for any breach of the contract.

Judgment affirmed.

State ex rel. v. Coffin.

THE STATE EX REL. RICKEY, SHERIFF, ETC., v. COFFIN, WARDEN, ETC.

Costs for transporting convict to and from a court-No compensation to guard for time.

1. It is the duty of the warden of the penitentiary under Sec. 7336, R. S., to allow and certify a cost bill which contains only such items of costs as the court has certified as accruing during the trial, and such additional items as are the proper expenses of transporting the convict to the penitentiary.

2. Guards of the penitentiary while engaged in taking a convict before the court which has issued a subpoena for him and there detaining him subject to its order, are engaged in the service for which their monthly compensation is fixed by statute; and no deduction can be made from such compensation because of their absence from the penitentiary while engaged in such service, nor can compensation of the guards for such service be taxed as costs in the case in which such subpoena is issued.

IN MANDAMUS.

(Decided April 2, 1897)

The relator, who is sheriff of Scioto county, prays for a peremptory writ of mandamus to compel the defendant, who is warden of the penitentiary, to certify a cost bill delivered to him by the relator, with a convict, the costs not having been made on execution against the convict. The warden refuses to certify the bill for the reason only that the common pleas court had not allowed and certified as costs the amount of the compensation of guards of the penitentiary while engaged in taking before the common pleas court, and there detaining, subject to its order, a convict who had been subpoenaed to testify.

Henry Bannon, for relator.

F. S. Monnett, Attorney General, for defendant.

BY THE COURT.

State ex rel. v. Coffin.

When a sheriff delivers to the warden of the penitentiary a convict and a bill of the costs in the case in which he was convicted, such costs not having been made on execution against the convict, it is the duty of the warden, under section 7336, Revised Statutes, to inspect such bill, to determine that it contains only such items as were certified by the common pleas court, and such further items as are the proper expenses of transporting the convict to the penitentiary. But he is without authority to review the action of the court as to the items of costs accruing during the trial.

When a subpoena has been issued under section 7200, Revised Statutes, for a convict confined in the penitentiary it is the duty of the warden, under section 7291, Revised Statutes, to take such convict before the court, issuing such subpoena and there to detain him until he is discharged by order of the court, or to cause him to be so taken and detained. Guards of the penitentiary wno take a convict before such court in obedience to a subpoena are, while so engaged, performing their appropriate duties for which their compensation is fixed by section 7388-14, Revised Statutes, and no deduction from the monthly compensation so fixed by the statute can be made on account of their absence from the penitentiary while engaged in such service, nor can compensation to them for such service be taxed as costs in the case. Peremptory writ allowed.

Paddock v. Adams and Holly. Ex'rs.

PADDOCK v. ADAMS AND HOLLY, EXECUTORS.

Deed of land in trust-Deed and instructions for its execution competent evidence, when-Action to enforce the trust—Section 5242, Revised Statutes.

1. Where the father, being the owner of the quitable estate in land, directs the conveyance of the legal title to his son in trust for the father, and in the deed the grantee is designated as trustee, both the deed and instructions for its execution are competent evidence to prove the trust, in an action for its enforcement against the son who denies the trust, and claims the conveyance was a gift or advancement.

2. An action to enforce such a trust is not an action involving the validity of the deed, within the purview of the last clause of section 5242, of the Revised Statutes; and where such action is prosecuted by the executor of the cestui que trust, the adverse party is incompetent to testify to matters occurring before the death of the cestui que trust.

(Decided April 27, 1897.)

ERROR to the Circuit Court of Cuyahoga county.

The purpose of the action below, which was brought by the executors of Thomas S. Paddock, against his son Charles S. Paddock, was to enforce the execution of a trust by the latter, under which it was alleged he held the legal title to the property involved, consisting of certain lots in the city of Cleveland, and to subject the property to sale for the benefit of the estate. The consideration for the property, it is claimed, moved entirely from the testator, who caused it to be conveyed to his son upon the trust that he should hold and convey it as the father might direct. The petition describes the property, sets out the terms of the trust, and alleges that by the will the plaintiffs are directed to sell the property in order to pro