People v. Frazier

CONREY, P. J.

The record does not show any motion for a new trial. On appeal from the judgment, defendant contends that the verdict is contrary to law, in that the evidence failed to prove that the minor child was in need of any of the common necessaries of life, and that the evidence fails to show that defendant at any time failed or refused to pay for the support of said minor child. Section 270 of the Penal Code, referring to the offense which is the subject of this action, provides that the omission by the father of a child to furnish necessary food, clothing, shelter, or medical attendance, or other remedial care, for his child, is

prima facie

evidence that such omission is wilful and without excuse. It is also provided that the father is not relieved from criminal liability for such omission, merely because the mother of such child, or any other person, furnishes such necessary food, etc., for such child. There is in the record abundant evidence that during a large part of the time for several years, down to- and including the date definitely stated in the information (November 15, 1926, “and prior thereto”), the defendant was earning a substantial income, but did not make any provision for his child or even trouble himself so far as to investigate and find out how she was provided for or to what extent other persons were contributing to the child’s support. It is in evidence that at and before the period of time covered by the information, said child was being

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supported by a person not legally bound to do so, to wit, the second husband of the child’s mother, to whom said mother had been married after her divorce from the defendant. We think that the evidence is sufficient to establish the fact that some provision for the support of this child was necessary; that the defendant was legally obligated to furnish such support, and that his failure to do so was wilful and without lawful excuse. The fact that on a very few occasions the defendant gave to the child’s mother certain small sums for the support of the child and the further fact that during a few months the defendant’s situation prevented him from making any contribution toward the child’s support, is not- inconsistent with the fact that for long periods of time, and within the period covered by the information, the defendant was guilty of criminal neglect and omission to provide for said child.