People v. Kovacevich

JENNINGS, J.

The defendant was accused by information of the offense of having wilfully failed to provide necessary food, clothing, shelter, medical attention and other remedial care for a certain minor child of whom it was alleged he was the father. Upon arraignment defendant entered a plea of not guilty to the accusation. He was thereafter tried before a jury which returned a verdict of conviction. Judgment was thereupon pronounced whereby it was ordered that defendant be confined in the county jail of Fresno County for a period of one year. The judgment provided that pending defendant’s good behavior and on the further condition that defendant pay a stated monthly sum for the child’s support execution of the sentence of imprisonment should be suspended. From the judgment thus rendered defendant appeals.

The principal contention advanced by appellant is that the trial court erroneously refused to permit him to cross-examine the complaining witness relative to the paternity of the minor child named in the information. It is insisted that thereby appellant was deprived of his right to a fair trial and that consequently the judgment pronounced against him must be reversed.

Examination of the record discloses that, during the presentation of respondent’s case, there was admitted in evidence, without objection by appellant, the judgment roll in a certain civil action wherein appellant was named as the defendant and the minor child named in the information was the plaintiff. The judgment which formed a part of said judgment roll decreed that the plaintiff in said action is an illegitimate minor child whose mother is the complaining witness in the criminal proceeding and that appellant is the father of said child. It was accordingly thereby adjudged and decreed that appellant should pay monthly to the plaintiff a specified sum for plaintiff’s support.

The complaining witness, Ellen Colombero, testified on direct examination that she was the mother of the minor child mentioned in the information and that appellant was the child’s father. She further testified that from the time

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the child was born until the date of trial, a period of approximately 20 months, appellant had contributed not more than the sum of $5 to the child’s support. On cross-examination appellant’s counsel asked the following question: “At the General Hospital, didn’t you tell the doctor and the parties in charge that you did not know who the father of the child was ? ” Objection to this inquiry on the ground that the question of paternity had been conclusively adjudicated by the judgment rendered in the civil action brought by the child against appellant was sustained and the trial court, after argument, ruled that the judgment in the civil action was conclusive on the issue of paternity. The court also instructed the jury that in the present proceeding the question of paternity had been determined in another action wherein it had been adjudged that appellant was the father of the minor child and that the judgment in said action was conclusive as to the relationship which existed between appellant and the child and that consequently the only question submitted for the jury’s determination was whether or not appellant had unlawfully failed to support the child.