OPINION ON REHEARING.
Appeal from Bourbon district court; Edward C. Gates, judge. Opinion on rehearing reversing former judgment of affirmance, filed May 6, 1922. (For original opinion see ante, p. 231.) Archie D. Neale, of Chetopa, for the appellant. Richard J. Hopkins, attorney-general, and Harry Warren, county attorney, for the appellee.The opinion of the court was delivered by
Dawson, J.:A rehearing was granted in this case, not because the court had doubt about the correctness of the matters discussed in the original opinion (ante, p. 231), but because a majority of the court have serious misgivings about the justice of the net result. The general statement of the case and opinion as originally written may stand, but must be supplemented by what is here set down.
The statute under which the defendant was prosecuted and convicted is section 83 of the crimes act (Gen. Stat. 1915, § 3410):
“ . ' . . Any parent who shall, without lawjul excuse, desert or neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years in destitute or necessitous circumstances, shall be guilty of a , crime and, on conviction thereof, shall be punished by imprisonment in the reformatory, or penitentiary, at hard labor, not exceeding two years.”
It will be noted that the dereliction of the parent is criminal if done “without lawful excuse.”
This court is now inclined to the view that insufficient significance was given to the words “without lawful excuse.” Defendant made quite a strong showing of a lawful excuse. Pursuant to the divorce decree the defendant turned over to his ex-wife, the prosecuting witness, $11,000 worth of property, as alimony for herself and for the support of the child. He further offered' to pay $25 a month for the support of the child. He further offered to go with the prosecuting witness before the district court of Crawford county which granted the divorce and submit the matter to that court for determination as to what sum or sums he should further be required to pay. The defendant also offered to take the child and provide for its support and maintenance in his own home. In the divorce case the prosecuting witness was only given the custody *239of the child because of its tender age at that time, not because of any unfitness on the part of the defendant to have custody of it. The parents had been married only about a year when the divorce was granted. (Miller v. Miller, 97 Kan. 704, 156 Pac. 695; Miller v. Miller, 103 Kan. 102, 172 Pac. 1010.)
In this view of the case we think the following instructions to the jury when construed together were erroneous:
“11. If you find and believe from the evidence that in the divorce suit brought by Rose C. Miller, his former wife, against the defendant, in the district court of Crawford county, Kansas, the court awarded his former wife, Rose C. Miller, certain property and money to be used for the support of herself and minor child, and you further find that this property or money received from the defendant as in accordance with the decree in the divorce suit above referred to? has been exhausted and that the child of the defendant is now in destitute and necessitous circumstances, the fact, if you find it to be a fact, that the defendant contributed said property or money as provided in said divorce decree, would be no defense in this action.
“12. Evidence has, been introduced that the defendant offered to pay $25.00 per month toward the support of his minor child in this county, now unless you find that this sum so offered was adequate and sufficient to support said child and relieve its destitute and necessitous circumstances, if you find it was in destitute and necessitous circumstances, I instruct you that said offer to pay said sum of $25.00 per month would be no defense in this action.
“13. If you find from the evidence that the decree of divorce granted Rose C. Miller by the district court of Crawford county, Kansas, from the defendant, Melvin D. Miller, awarded the care and custody of their minor child to her mother, Rose C. Miller, then if you further find that the defendant offered to take said child from its mother and support her in Crawford county, Kansas, that offer would be no defense in this action.”
Another feature of this case which may have led to the conviction of the defendant was instruction No. 8:
“In the same law, it is provided that before the trial of the defendant in each case, with his consent or after the trial, or upon the entry of a plea of guilty or after conviction, instead of imposing the penalty prescribed by law, the court, in its discretion, may make an order and change the same from time to time for a period not exceeding two years, directing the defendant to pay such sum or sums of money as seems reasonable, toward the support and maintenance of his children, and meanwhile permit the defendant to go at large, either with or without security for his appearance."
Under the general rules of trial practice, it was no concern of the jury what the penalty prescribed by statute may be. This court does not feel assured that the giving of this instruction was nonprejudicial.
*240There are two lines of authorities — (1) that the derelict father may be prosecuted in the county where the child is found in necessitous circumstances, and (2) that the father must be prosecuted in the county where he resides, that is to avoid the somewhat fantastic theory that the crime is of an ambulatory nature. While this court is somewhat committed to the first of these theories, yet in this case, particularly in view of the very persuasive significance attaching to his prima fade lawful excuse, it would have better ■accorded with justice if the machinery of the criminal law in Bourbon county had not been set in motion against the defendant until the civil aid of the Crawford county district court had been invoked by the prosecuting witness.
Reversed.
Bxjrch, Mason and West, JJ., dissenting.