People v. Cagigas

MARKS, J.

This is an appeal from a judgment and an order denying a motion for a new trial in a case in which defendant was prosecuted for failing to support his minor son.

Defendant and Guillermina Fierro were married in San Luis, Sonora, Mexico, on March 19, 1939. They separated frequently, living together only intermittently. A son, Rolando Efrain, was born to Guillermina on August 27, 1943, in Los Angeles. Defendant did not contribute to the child’s support although he was regularly employed in Mexicali, Mexico. Defendant denied that he was the father of the child.

The couple separated about August 18, 1942. Defendant testified that they had never lived together as husband and wife after that date. Mrs. Cagigas testified that they resumed marital relations in October, 1942, at the home of her mother in National City, California, and finally separated about February 1, 1943; that defendant was the father of the child. This evidence was corroborated by her mother.

Defendant maintains that the evidence of paternity was not sufficient to support the implied finding against him. This argument is based largely on the fact that a child was exhibited to the jury without naming or otherwise identifying it, and on the following question which was put to the mother, and her answer: “Q. Did you then have the baby, Refugio? A. I had the baby with me, yes.”

We have read the record and have found no indication that defendant made any claim during the trial that the baby exhibited to the jury was not the Rolando Efrain Cagigas named in the information. The question we have quoted was put to Mrs. Cagigas by the deputy district attorney, and the use of the name “Refugio,” in referring to the- child, seems to have been a mistake on his part. Mrs. Cagigas’ mother’s first name was “Refugio,” which might explain the mistake. In any event, defendant did not follow the matter up, and he made no claim in the trial court that there was any variance between the child named in the information and the name of the child of which Mrs. Cagigas claimed he was the father. The record satisfies us that but one child was born to Mrs.

[303]

Cagigas which was named Rolando Efrain Cagigas and that the jury concluded defendant was its father.