charged the jury in part:
* * * Children two and six years of age, respectively, having no independent means, or property in their own right are generally to be regarded as in destitute or necessitous circumstances within the meaning of the statute, when the father can, but does not, and the mother cannot out of her own independent means, provide for them, though both the mother and the children be in fact, supported by the maternal grandmother. A father’s liability to support his minor child, or children, under the age of 16 years, generally exists, when, so far as anything he does for them, the children would be in destitute and necessitous circumstances.
The marital difficulties and misunderstandings which have existed in the past, or which now exist between the accused in this prosecution and his wife, including their present separation, are matters both immaterial and irrelevant with respect to the issue which you are to determine, and they should not be considered by you. In Donaghy v. State, 6 Boyce, 467, 530, 531, 532, 100 Atl. 696, it being-a prosecution for the failure to support a minor child, it was held that it was the duty of the father to support his child if he was financially able to do so, provided the child was in destitute and necessitous circumstances, even though the wife without sufficient excuse refused to live with her husband; that the separation of the father and mother, no matter through which one’s fault, is not a lawful excuse for the father’s refusal to support a young child in destitute and necessitous circumstances within the meaning of the statute; that mere refusal of a wife to *439live with her husband, even though she had no just cause to leave him, does not furnish him a lawful excuse for failure to support a child she takes with her. But it was said:
“The financial inability of the father to support his child would be a lawful excuse for nonsupport. * * * And perhaps the independent and adequate means of the wife, who without just cause separates herself and her child from her husband, would be a lawful excuse for his refusal to support the child. The' desire of the grandparent to have the custody of the child, with an assumption of the legal liability to support it, might also furnish sufficient excuse for the father to refuse to support the child who is supplied with the necessaries of life.”
It was suggested that other instances, no doubt, could be mentioned in which the words “without lawful excuse,” employed in the statute, might very well apply within legislative intendment. The question for you to determine is not whether the wife had a lawful excuse for leaving her husband and taking her children with her, but whether the father had refused to support his children as fully as he was reasonably able and capable of doing; and if he has refused to support his children whether he has shown a lawful excuse for doing so.
A father without lawful excuse is under a legal liability to support his child, or children, under the age of sixteen years. The financial inability of the father to support his child, if the result of physical inability to work, he being without independent means out of which he could furnish support for his child, constitutes a lawful excuse for the child’s nonsupport. It is for you to say, from ¿11 the evidence in this case, whether the father has reasonably done all he could towards the support of his two children, and particularly so since September last. In a case of this kind, it is not only the duty of the father to reasonably support his young children according to his circumstances in life, but -it is equally his duty to seek such employment as he can procure, though it may be different from his usual occupation, to the end that he may assist in the support of his children, at least, to the best of his ability, under all the circumstances of the particular case. * *
Verdict, not guilty.