People v. Winn

BARNARD, P. J.

The defendant was charged with a violation of section 270a of the Penal Code, it being alleged that from February 18, 1948, to February 1, 1949, he wilfully abandoned his wife and left her in a destitute condition, and refused and neglected to provide her with necessary food, clothing, shelter and medical attention although he had sufficient ability to provide and earn the means therefor. A prior conviction for a similar offense was also charged. The defendant pleaded not guilty hut admitted the prior conviction. A jury found him guilty and a judgment was pronounced sentencing him to imprisonment. He has appealed from the judgment and from an order denying his motion for a new trial.

The defendant and his wife were married in 1920. In 1934, Mrs. Winn suffered a stroke and has never completely recovered her health. In June, 1945, while they were living in Porterville, Mrs. Winn desired to go to Colorado to see her daughter, believing that the change in climate would benefit her health. The defendant consented to this trip, telling her he would come after her or send her money for the return trip. After she left the defendant gave up their apartment and sold such household effects as they had. Some six months later, the defendant having failed to answer her letter or send her any money, Mrs. Winn returned to Porterville. Subsequently, defendant pleaded guilty to a violation of section 270a from July 15, 1945, to January 30, 1946. He was sentenced and served time in a penal institution, from which he was discharged on February 18,1948.

Following his discharge the defendant returned to Porter-ville but made no effort to reestablish his home. He did not go to see his wife and has contributed nothing to her support since June, 1945. During the time here in question Mrs. Winn has lived with and has been supported by their daughter and

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son-in-law. The daughter’s attempts to obtain financial assistance for Mrs. Winn from the defendant were unsuccessful.

It is first contended that the district attorney was guilty of prejudicial misconduct in referring to the defendant’s prior conviction in his opening statement and in his closing argument, in violation of section 1025 of the Penal Code; and that the court erred in stating in the presence of the jury, in connection with ordering that the exhibits be left with the jury for its perusal, “In the criminal file No. 6674 I am going only to leave a certified copy of the minutes. ’ ’ This file was the one relating to the defendant’s prior conviction.