People v. Sianes

BARNARD, P. J.

In an information filed by the district attorney of Orange County the defendant was charged with failing to support his minor child, alleged to have been committed as follows:

“That the said Lucas Sianes on or about the 1st day of January, 1933, at and in the County of Orange, State of California, and before the filing of this Information, did wilfully, and unlawfully omit, without any lawful excuse, to furnish necessary food and medical attendance and other remedial care for his minor child, to-wit: a child conceived, but not yet born. ’ ’

This appeal is from an order sustaining a demurrer to the information without leave to amend.

The pertinent portion of section 270 of the Penal Code, upon which this information was based, reads as follows:

“A father of either a legitimate or illegitimate minor child who wilfully omits without lawful excuse to furnish necessary food, clothing, shelter or medical attendance, or other remedial care for his child is guilty of a misdemeanor ... A child conceived but not yet born is to be deemed an existing person in so far as this section is concerned.”

The present controversy relates to the last sentence of this section, which was added by amendment in 1925.

As here presented, the first point raised is one urged by the respondent to the effect that it is not possible to state a public offense with reference to a failure to make provision

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for an unborn child, since the amendment referred to fails to provide that the offense covered by the section shall also apply to an unborn child. It is argued that, while this amendment provides that a child conceived but not yet born is to be deemed an existing person it does not provide that such an unborn child is to be deemed an existing child or an existing minor child; that the original section does not relate to all existing persons, but is limited to such existing persons as are minor children; and that by sections 25 and 26 of the Civil Code the period of minority of a child is fixed as being that from the date on which it is born to the date on which it reaches the age of twenty-one. Apparently the contention is that within the meaning of this section an unborn child is not a minor child and, therefore, an information attempting to charge a failure to make provision for an unborn child fails to state facts sufficient to constitute a public offense.