People v. Freitas

DOOLING, J.,

pro tem.

The defendant was convicted after a jury trial of a violation of section 270 of the Penal Code, failure to provide for a minor child. The child is illegitimate and appellant claims that the evidence is insufficient to prove; 1. that appellant is the father of the child,

[686]

and 2, that the failure to provide for the child was wilful and without lawful excuse.

Before the birth of the child the mother had charged appellant with a violation of section 268 of the Penal Code, seduction under promise of marriage. Appellant was held to answer on that charge, but the information was later dismissed on motion of the district attorney, the ground stated being the insufficiency of the evidence to justify his prosecution. The evidence given by the mother on the hearing before the committing magistrate on the seduction charge, and that given by her at the preliminary hearing and on the trial in the present action as to the number of claimed acts of intercourse with the appellant and the times when and circumstances under which they occurred was quite divergent, and in many respects contradictory; and the account given of appellant’s claimed proposal of marriage was according to conventional standards unusual in that the complaining witness testified that appellant came to her home with appellant’s sister, and without any preliminary ado asked her if she would marry him and that she accepted. The parties are old country Portuguese and the complaining witness gave as an explanation of the inconsistencies in her testimony her lack of complete familiarity with the English language. In any event her testimony was not inherently incredible and its weight and credibility were for the jury. The evidence though weak is sufficient to support the jury’s finding that appellant was the father of the child.

On the question of the wilfulness of appellant’s failure to provide for the child, however, we believe the evidence is insufficient. No demand was ever made on the appellant to support the child. The mother’s testimony to that effect was positive and unequivocal. Coupled with this lack of demand was the further fact that, with the exception of the evidence hereinafter referred to, there was (quoting from the attorney-general’s brief) “no evidence tending in the slightest degree to establish the fact that at any time prior to the filing of the Information he had any knowledge or had been informed that the child was to be born or had been born or was living or that the complaining witness had made any claim that he was the father of the child”. The only evidence worthy of the name relied on by the attorney-general to supply this admitted deficiency is: 1. Testimony of the complaining witness that when she was three months