¶1In this case a jury was waived and it was submitted to tbe court upon the testimony, which was to the effect that Ralph Baker has two children, and these two children are the ones which it is claimed in the incident he has failed to support. One of them is named John Baker, fifteen years old; the other Russell Baker, aged five years. The evidence shows that as far as John Baker is concerned, the defendant is not guilty. John Baker was supported, as the evidence shows, by his grandparents. I think they are the grandparents, but anyhow it was some one who voluntarily did it, and willingly did it, and this child was no charge upon the wife or anybody else, but by the consent of all parties he seemed to live with these parties and they were *464taking care of Mm and boarding and clotMng Mm and sending Mm to school, so that they performed all the parental duties that belonged to the parents, and by their consent John was thus supported. But as to Bussell the case is entirely different. He is only five years old, and there is nothing to show that Balph Baker was doing anything towards supporting him.
¶2It is argued by the attorney for the defendant that because the court would be compelled to find that there is no evidence showing that the defendant failed to support John Baker, that therefore the court could not find him guilty of not supporting Bussell Baker, but would be compelled to find him not guilty as charged in the indictment. The court does not think that that is so. For instance, if a person were indicted for stealing seven hogs and if the.proof showed that he stole six, could any one say that he should go free because the indictment charged him with stealing seven and the proof only showed that he stole six ? I do not think that that would be the law. The evidence clearly shows that nothing was done by the defendant towards supporting this five-year-old boy; and the court finds he is guilty under the indictment for not supporting the five-year-old boy named Bussell. Unless he makes arrangements by which he furnishes support to this minor five years old, there will have to be an order according to law in that matter.
¶3By Edward Kibler, Sr.: Did the court consider whether it would not have been necessary to have had separate counts in the indictment ?
¶4The Court: It might have been better, but I do not think it is fatal.