In Re Kendrick

NOURSE, J.

Petitioner was held to answer to the superior court upon a complaint charging a violation of section 270 of the Penal Code. He instituted this proceeding in

habeas corpus

asking his release from custody upon the ground that the evidence heard at the preliminary examination failed to show reasonable or probable cause for believing that the petitioner had committed any public offense.

The section of the Penal Code under which the charge was laid reads: “A parent of either a legitimate or illegitimate minor child who willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his child, is punishable by imprisonment in the state prison, or in the county jail, not exceeding two

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years, or by fine not exceeding one thousand dollars, or by both, and it shall be no defense to such an action that such child has been provided for by other persons. The superior court, sitting as a juvenile court, may exercise original jurisdiction over all such offenses.”

The complaint charged that the petitioner, without lawful excuse, omitted to furnish his minor child with necessary food, clothing, shelter, and medical attendance. It was signed by petitioner’s wife, who was the mother of the child.

The testimony offered by the prosecution at the preliminary hearing disclosed that the child was provided with all the necessaries of life by its mother, aided to some extent by its father; that during a portion of the period when petitioner was charged with having neglected the child it was in the custody of petitioner’s mother by his arrangement and was properly and amply cared for; that on August 10, 1922, the mother of the child took it from the custody of petitioner’s mother and moved with it to the home of friends, where she paid out of her own funds sixty dollars a month to cover the board and lodging of herself and the child; that the petitioner had been a newspaper artist, but had been out of employment since August 8, 1922. It also appeared that prior to the filing of the complaint the complainant had instituted proceedings for a divorce from petitioner herein and had obtained an order from the superior court awarding her temporary alimony for the support of herself and the child.