In Re Perry

HART, J.

The petitioner alleges that he is illegally restrained of his liberty by the sheriff of Solano County, and makes this application to this court for a writ of

habeas corpus

to the end that he may be released from such unlawful ■restraint.

The petition for the writ alleges that on or about the fourth day of February, 1918, the petitioner was arrested on a warrant issued by one S. A. Gripps, justice of the peace of Elmira Township, in said county of Solano, upon a complaint charging petitioner with willfully omitting, without lawful excuse, to furnish his minor child, Henry Perry, with necessary food, clothing, shelter, etc. (Pen. Code, sec. 270); that upon said complaint the petitioner was given a preliminary

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hearing, and thereupon held to trial in the superior court of said county upon said charge.

It is further alleged that, on the twenty-eighth day of April, 1915, the superior court of the said county of Solano, in an action between the petitioner as defendant and his wife, Grace Perry, as plaintiff, made and entered an interlocutory decree of divorce, wherein and whereby said Grace Perry was adjudged to be entitled to a divorce from petitioner, upon the ground of desertion; that said decree provided, among other things, that the custody and control of the minor children of petitioner and said Grace Perry, to wit, Robert Winchell Perry and Henry Arthur Perry, be awarded to said Grace Perry; that said interlocutory decree of divorce so rendered and entered in said action made no provision whatever for any support of said children; that thereafter, to wit, on the fourth day of May, 1916, the said superior court of the county of Solano rendered and caused to be entered its final decree of divorce, wherein and whereby all the terms of said interlocutory decree “in regard to the custody and control of said minor children were confirmed and ratified”; that “said interlocutory decree of divorce and said final decree of divorce have never been altered or modified in any respect whatsoever, and still are in full force and effect as rendered and entered; that there have never been any proceedings brought under sections 138 and 139 of the Civil Code to require said Luther R. Perry to contribute to the children’s support. ’ ’