PROSECUTION FOR FAILURE TO PROVIDE FOR STEP-CHILDREN

Court of Appeals for Muskingum County.

#### The State of Ohio v. Edward Barger.

Decided, April 15, 1920.

*Parent and Child*— Step-Father *not Criminally Liable for Failure to Maintain Step-Children.*

The legal and ordinary acceptation of the word “parent” does not include a step-father or step-mother, and under the rule that criminal statutes must be strictly construed it follows that prosecution does not lie against a step-father, under Section 12970, for failure to provide for his step-children.

*C. A. Maxwell,*attorney for plaintiff in .error.

*J. 8. Phillis*contra.

Houck, J.

This ease is here on .error from the common pleas court of this county, wherein it is sought to reverse the judgment of that court in reversing a judgment of conviction in the municipal court of Zanesville, Ohio, wherein the defendant in error was convicted of failure to furnish maintenance and support for the three children, by a former marriage, of said Barger’s wife, being the step-children of said defendant in error.

The conceded facts are as follows: That Myrtle Barger was 'married to Edward Barger on or about the 29th day of Febru■ary 1916, that Thelma IToffer, aged 13 years, Herbert Hoffer, aged ten years, and Tsabelle Hoffer, aged seven years, are the children of Myrtle Barger by a former marriage; that they are not the children of Edward Barger; that Thelma Hoffer, Herbert Hoffer and Isabelle IToffer resided in Zanesville, Muskingum county, Ohio, along with their mother, Myrtle Barger, from February 17th, 1919, to about March 4th, 1919, and were not furnished anything for their maintenance and support, during *31said time, by the said Edward Barger, who, during said time, was the husband of the said Mrytle Barger; that during the time from February 17th. 19.19, to March 4th, 1919, the said Edward Barger was working and earning money sufficient to have furnished said maintenance and support for said chiidrer, but failed to do so; that said Edward Barger knew, when he married the said Myrtle Hoifer, that she had said children and that said children were wholly dependent upon their mother for their support.

Barger was convicted in the municipal court, under favor of the provisions of Section 12970, General Code of Ohio, which reads:—

> “Whoever, having the control or being the parent or guardian of a child under the age of sixteen years, wilfully abandons said child, or tortures, torments, or cruelly or unlawfully punishes it, or wilfully, unlawfully, or negligently fails to furnish it necessary and proper food, clothing, or shelter, shall be fined not less than ten dollars, nor more than two hundred dollars, oi' imprisoned not more than six months, or both.”

The affidavit against Barger alleged that said Barger was the parent and had the custody of said children.

The question here to be determined is: — Is a step-father a parent, as contemplated and intended by the provisions of said Section 12970, General Code of Ohio, being the provision of the statute under which conviction of said Barger was obtained, or in other words, does thé word “parent” in said statute include step-parent — in the instant case, step-father?

A penal statute must be strictly construed and can not by implication be enlarged or extended to cases not strictly within its terms, although they may appear to be within the reason and spirit of the statute. A strict construction is placed upon criminal statutes. Applying this rule to the case now before us under review, what is the only proper conclusion that can be reached?

We have no hesitancy in saying that we believe that it was not the intention or purpose of the Legislature, in the enactment of Section 12970 General Code of Ohio, to include step-parent in *32the word parent. If it had been the intention of the Legislature 'so to do, it would have written therein the word "’step-father” ■or "step-mother.” Not having done so, we hold that it was not the intention of said legislative enactment to include within said penal statute step-father or step-mother. We hold that, in the legal or ordinary acceptation of the term "parent,” it does not include a step-father or a step-mother. We therefore, find that the common pleas court was right in reversing the judgment of conviction of Barger in the municipal court.

The judgment of the common pleas court is affirmed.

Judgment affirmed.

Shields, J., and Patterson, J., concur.