People v. Hamil

PRESTON, J.,

pro

tem.

The defendant was indicted by the grand jury of the city and county of San Francisco for unlawfully failing, without lawful excuse, to furnish necessary food, clothing, etc., for an illegitimate minor child, and thereby violating the provisions of section 270 of the Penal Code, as amended in 1923 (Stats. 1923, p. 592). To this indictment defendant entered a plea of not guilty and went to trial before a jury, and the jury found him guilty. Defendant made a motion for a new trial and a motion in arrest of judgment, both of which were denied, and the court pronounced judgment imposing imprisonment in the county jail for a period of two years and a fine of five hundred dollars. From this judgment,- and the order denying his motion for a new trial, the defendant appeals.

Resolving all conflicts in the testimony against the defendant, as the jury did in finding him guilty of the offense charged, it appears that he is the father of a child who was born at St. Elizabeth’s Infants Hospital in San Francisco on October 8, 1922, to a young, unmarried mother; that at all times during his acquaintance with the mother of this child, the defendant was married to another woman and that there were three children of that marriage; that defendant was supporting his legitimate family and earning his living by driving a laundry wagon; that he gave the mother of this illegitimate child, who is the prosecuting witness here, fifty or sixty dollars before she went to the hospital for the birth of the child; that up to the time the prosecuting witness went to the hospital, which was about four or five months before her child was born, she worked as a waitress and earned her living in that way, and that after she left the hospital, about the fourth day of November, 1922, she resumed her work as a waitress, and defendant gave her seven dollars a week for the support of the child until about April, 1923. Since April, 1923, he has provided nothing toward the support of the child. The indictment charges the defendant with failing to provide for the child on September 1, 1924.

[652]

This defendant was convicted of failing to provide for this same child on April 1, 1923, under section 270 of the Penal Code, prior to the amendment of 1923, and the judgment of conviction was reversed by this court on February 26, 1924.