People v. Nelson

THE COURT.

Appellant was tried before the court (a jury having been waived) and found guilty of failure to provide for his four minor children. (Sec. 270, Pen. Code.) This is an appeal from the judgment of conviction and the order denying a new trial, upon the following grounds:

First: The insufficiency of the evidence to prove that the failure of the defendant to provide for his minor children was wilful and without lawful excuse.

Second: The court erred in refusing to admit evidence tending to show the motives of the complaining witness.

[85]

Third: A fatal variance between the Information and the alleged proof, and

Fourth: That section 270 of the Penal Code is unconstitutional.

The contention that this section is unconstitutional was raised and answered in

In re Bryant,

94 Cal. App. 791 [271 Pac. 926], adversely to appellant. The court there said:

“Section 270 merely fixes the

quantum

of evidence which, until overcome, establishes beyond a reasonable doubt the guilt of a defendant charged with a violation of that section; it does not compel a defendant to be a witness against himself.”

As to the alleged insufficiency of the evidence to establish the wilfullness of appellant in his neglect of his children, the record reveals that the defendant and his wife have four children aged 8, 5, 3 and 1. In November, 1939, defendant worked for a roofing contractor and received $22.54 for about five days’ work. Of this amount he gave his wife $5 for groceries, retaining the balance for himself. From January to April defendant worked on a ranch. He received two meals at the ranch and slept at the home of a brother. For this period of employment he received $43, giving nothing for the support of his children; although he brought home some eggs and a turkey, which had been given to defendant by his brother. While on an S. R. A. project he received $26, out of which he paid $7.50 on account of rent of the house occupied by his wife and children, and gave her $2 for groceries. For another period of S. R. A. employment he received $30, giving his family about $5; and again out of another S. R. A. check of $30 the family received $2, and at the time of his arrest he gave his wife another $5, he having been paid $42 by S. R. A. shortly prior to his arrest.