I am unable to concur in the conclusion reached by my colleagues and will state as briefly as possible why.
In so far as their opinion holds that in suspending the imposition of sentence upon a parent who has plead guilty to or been convicted of a violation of section 4635, Revised Code of 1928, that is, for failure to provide for a minor child, the court may, in the exercise of its discretion, proceed either under section 4637, Revised Code of 1928, or under the general suspension statute, section 5105, I think it correct; but to the extent that it compels the trial court to look to section 4637, or to any other provision of law prescribing a legal duty on the part of defendant, for the conditions it may fix upon the suspending of sentence under section 5105, I am unable to accept it. Such a construction practically destroys the effect of the holding that the court has the discretion to proceed under either section.
If the expression in the latter section, "the court, judge or justice thereof, may suspend the imposing of sentence . . . uponsuch terms and conditions as it shall determine," notwithstanding its all-inclusive character, must be so construed as to restrict the court in determining what conditions it may impose in case of a violation of section 4635 to the selection of acts some other provision or principle of law already makes it the duty of the defendant to perform, *Page 83 there is no reason for its existence so far as a violation of section 4635 is concerned. If the trial court must be governed by section 4637 in imposing conditions in such a case, the same reasoning would restrict it to requiring the defendant, not merely to provide the necessary "food, clothing, shelter or medical attendance" for his child during his minority, but also to enter into an undertaking with sureties conditioned that he will do so. There is no reason, since the court must look to that section for conditions to impose, or at least for limitations of its action in this respect, why it should be required, or even permitted, to select or impose only a part of those it prescribes and not the others, inasmuch as the theory upon which the trial court's power under section 5105 is so greatly circumscribed is that the legislature has indicated in that section upon what terms and conditions the imposition of sentence for a violation of section 4635 should be suspended.
The legislature has, it is true, authorized the court in section 4637 to suspend sentence after conviction or plea of guilty to a violation of section 4635, but it made such action dependent upon the condition that he enter into an undertaking with sureties to furnish his minor child with necessities, and it would seem clear that requiring a bond to compel this for the period of minority as a condition precedent to the suspension of sentence could have no bearing whatever upon the power the legislature conferred upon the trial court in another section, 5105, to suspend the imposition of sentence, not upon the giving of a bond like the one provided for in section 4637 but upon such terms and conditions as it should determine. Neither does the fact that the legal duty of a parent to take care of its child extends only to the age of twenty-one years affect the jurisdiction of the court to fix as a condition of suspension that he continue such help beyond that period if the circumstances *Page 84 are such as reasonably to warrant it. There is certainly no provision of law that makes it unlawful or against public policy for him to furnish such help, or to perform any other worthy act.
To construe the expression, "upon such terms and conditions as it may determine," to mean a grant of power no greater than that prescribed in section 4637 narrows it unnecessarily and to an extent never contemplated. The only limitation the legislature intended to place on the action of the court by this language was, in my judgment, that it impose such terms and conditions as, in view of the situation with which it is called upon to deal, reasonably and fairly fit the circumstances. Whether they constitute acts the law already makes it the duty of the defendant to perform or acts that it does not prohibit but which all good citizens commend and approve is wholly immaterial. Such wide powers were conferred for the specific purpose of enabling the court to look, not merely to the provisions of the statute or general principles of law but to the broad field of experience as well, for terms and conditions of suspension that would best meet the situation. Such has been the procedure of the courts under it since it became a part of the law of the state.
If, then, the facts be considered in the light of the view that in determining the conditions to be imposed the court is restricted, not to what the law — section 4637 or any other provision — makes it the duty of the defendant to do but to what should be held to be reasonably and fairly adapted to the purpose of preventing other crimes or of making reparation for the one already committed, there can be no question but that those fixed in this case aptly meet this requirement. It appears that on March 5, 1930, when the petitioner pleaded guilty to a violation of section 4635, supra, and the imposition of sentence was suspended, the son, Victor Gilden, was nearly eighteen *Page 85 years of age, and that for six years prior thereto the petitioner had entirely, and for several years before that in part, failed to provide him with the necessary food, clothing, shelter and medical attendance; that he had, in addition, so ignored a decree entered in 1919 divorcing him and Maebelle E. Redewill, awarding her the custody of the child and directing him to pay $60 a month for his support, that he was then $4,300 in arrears thereunder, and the decree yet had three years to run. Notwithstanding his dereliction in both these respects, however, the court decided that the "ends of justice will be subserved" by suspending for five years the imposition of a sentence in the state prison and fixed as a condition thereof that he take care of the child's needs and education during that period, or until he reached his majority and for two years beyond, thus making reparation, in part at least, for his failure all these years to fulfill his duty as required by section 4635, supra.
This was a proper exercise of the court's discretion, for nothing more practical, more reasonable or more in harmony with the suspended-sentence law could have been thought of or suggested. The conditions imposed did not compel him to make complete amends for his past failure, whether the duty to his child be measured by the requirements of section 4635 or by the sums mentioned in the decree, but merely directed him to pay a reasonable amount monthly during the period of suspension, enough simply to take care of the boy's necessities and enable him to finish school. The sums to be paid for the first three years, or until the boy reached his majority, were merely in discharge of a legal duty, while those for the two years beyond his majority were largely for repairing the injury he had caused by his failure for so many years to provide the boy with the necessities, though the total amount directed to be paid during *Page 86 this period for this purpose was, after the reduction in June, 1931, at petitioner's request, about $1600, a sum substantially less than the fulfillment of his duty under section 4635 during these many years would have required.
It is difficult to conceive of a condition that could have been imposed that would have borne a more direct relation to the offense to which the petitioner had pleaded guilty and have tended in any fairer way to make some reparation to the mother who for the six or eight years prior to March 5, 1930, had been compelled, because of petitioner's failure to do his duty, to provide the boy with the necessary food, clothing, shelter and medical attendance. It relieved her from the burden of sending him to school for the two years beyond his majority and, hence, clearly had a direct bearing on reparation for his past offense as well as an effect upon further violations of the provisions of section 4635, and this brought it within the purview of the alternatives mentioned in the opinion of the majority that "any condition imposed under the statutes allowing the suspension of sentence must be one which has some reasonable bearing upon the prevention of a future crime by either the offender or some other person, or upon reparation by the offender for the injury which he has caused by the particular offense already committed." The fact that the order directed that the payments be made to the adult probation officer for the "purpose of carrying the boy over," rather than to the mother, detracted in no sense from their character as reparations. Neither did the fact that it permitted the petitioner to pay the $1600 in twenty-four installments after the boy reached twenty-one, instead of requiring its payment in one or more sums before that date, affect its legality in the slightest degree. The moment the court imposed the condition that he pay this sum his obligation to do so became fixed, and it is *Page 87 immaterial that he was given more than three years, or until after the boy reached his majority, to satisfy it. It was imposed at a time the court had a right to impose it and was to be paid within the period of suspension.
The condition requiring the payment of installments two years beyond the boy's majority had just as much bearing on the question of future violations of the Penal Code in any respect by the petitioner as did that portion of it applying to the three years prior thereto. It was just as reformative in character and particularly applicable in view of petitioner's failure for so many years to provide the necessary "food, clothing, shelter or medical attendance." The fact that the boy would reach his majority within three years from the day the sentence was suspended and the condition imposed, March 5, 1930, in no sense affected the jurisdiction of the court either to sentence petitioner for a term of five years from that date in the state prison, that is, through the two years beyond the boy's majority as well as the three before, or to suspend the imposition of sentence for the same five-year period if it felt the ends of justice would be subserved thereby. And since the court could have extended either the sentence or the suspension thereof beyond the boy's majority it follows that it was within its power in pursuing the latter course to determine that the conditions of suspension should run for the same period of time. The terms or conditions fixed under this provision of the suspended-sentence law are in reality merely substitutes for the penalty the crime itself carries but intended, as they were in this case, to be so much lighter and less severe in character that they are not looked upon as punishment or a penalty, and the power of the court to say what this shall be is unquestioned. *Page 88
Since, therefore, the conditions of suspension were, in my opinion, within the jurisdiction of the court to impose, the alternative writ of prohibition should be quashed.