#### The State of Ohio *v.*Sanner.

*Presence of one accused of crime*— At *place of crime*— Not *essential to guilt, when*— Fadhire *of parent to provide for minor children —Interpretation of Act of April 28, ipo8*— Criminal *law.*

1. As to some crimes, the physical presence of the accused, at the place where the crime is committed, is not essential to his guilt.

2. A parent may be guilty of the crime of failing to provide for his minor children, defined by the act entitled an act to compel parents to maintain their children, passed April 28, 1908 (99 Ohio Laws, 228), although he is a resident of another state during the time laid in the indictment, and the venue of the crime is in the county where the child is when the complaint is made.

(No. 11796

Decided January 18, 1910.)

Exceptions to the decision of the Court of Common Pleas of Allen county.

*394JANUARY TERM, 1910 Opinion of the Court. [81 O. S.

■The grand jury of Allen county indicted one William Sanner, *late of said county,*for refusing, failing and neglecting to provide for his seven minor children, under sixteen years of age, living in said county, with the necessary and proper home, care, food and clothing, he being well able to furnish the same by reason of having means and by personal service, labor and earnings.

The defendant demurred to the indictment on the .ground that it does not charge an offense, nor does it charge the defendant with the commission of a crime or misdemeanor provided for in the” statutes of Ohio. The court sustained the demurrer, and discharged the defendant. The prosecuting attorney took a bill of exceptions, and on application obtained permission to file it for the decision of this court on the questions therein' presented.

*Mr. B. F. Welty,*prosecuting attorney, for plaintiff in error.

*Mr. W. W. Sutton,*for defendant in error.

By the Court :

Section 1 of an act entitled ah act to compel parents to maintain their children, passed April 28, 1908, 99 Ohio Laws, 228, reads as follows: “The father, or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child or children, under sixteen years of age, or the husband of any pregnant woman, living in this state, who being able either by reason of having means, or by personal services, labor or earnings, shall neglect or refuse to provide such child or children or pregnant *395woman with necessary or proper home, care, food and clothing, * * * shall, upon conviction, be deemed guilty of a felony.” “Section 2. If the offense charged is abandonment or neglect or refusal to provide such child or children or pregnant woman with the necessary and proper home, care, food and clothing the offense shall be held to have been committed in any county of this state in which. such child or children or pregnant woman may be at the time such complaint is made.” “Section 4. The citizenship once acquired in this state of any father or mother of any legitimate or illegitimate child living in this state, shall be deemed for all the purposes of this act to continue until such child has arrived at the age of sixteen years, provided said child so long continues to live in this state.”

The implication from the brief of the prosecuting attorney is, that the defendant was a non-resident of the state of Ohio during the time laid in the indictment and that the court sustained the demurrer on that ground. How- the court on a hearing on demurrer could be advised of the place of residence does not appear, however, the .question is raised by the record whether it is necessary to charge in the indictment that the defendant was “living in this state.”

The prior act, Section 3140-2, Revised Statutes, (94 Ohio Laws, 105) did not contain provisions like those of Sections 2 and 4, and this court in a case reported without opinion, *State*v. *Etvers, 76*Ohio St., 563, overruled the exceptions of the prosecuting attorney of Williams county • to the ruling of the court of common pleas of that county, *396that a defendant was not guilty óf the offense, who resided in the state of Indiana during the time laid in the indictment.

Subsequently the act of 1908 was passed, and it cannot be doubted in view of the provisions of Sections 2 and 4 that the legistature intended the words “living in this state” to qualify the person to whom the duty is owing.

That as to some crimes the physical presence of the accused, at the place where the crime is committed, is not essential to his guilt is well settled. *Burton*v. *United States,*202 U. S., 344-387; *Norris*v. *State,*25 Ohio St., 217; *Lindsey*v. *State,*38 Ohio St., 507; 12 Cyc., 237.

*Exceptions sustained.*

Summers, C. J., Crew. Spear, Davis, Shaucic and Price, JJ., concur.