People v. Curry

HART, J.

The defendant was found guilty by a jury in the superior court of Tolo County of the crime of willfully omitting, without lawful excuse, to furnish necessary food, clothing, shelter, and medical attendance for his two minor children. He made a motion for a new trial, which was denied, and he brings the ease here on appeal from the judgment and the order denying said motion.

It appears that the defendant and his wife, the father and mother of two minor children, were divorced by a decree entered in the superior court of Yolo County. The record does not clearly show when this decree was entered, but it does appear that the wife was awarded the custody of the two minor children in October, 1914, and during all the years down to the time of the filing of the information herein had their legal custody. It appears that when the decree of divorce was entered (we judge from the record some time in the year 1914) the court also made an order requiring the defendant to pay to his wife for the care, support, education, etc., of said two minor children the sum of $20 per month or $10 per month for each child. The evidence shows that the defendant was not prompt in the payment of the moneys so ordered to be paid by him to the mother of the children, but from time to time during the several years intervening between the year 1914 and the time when the information herein was filed (December 5, 1923) he paid certain amounts, some of which were less and others in excess of any sum

[504]

which he was required under the order to pay for any one month. The larger amounts so paid were in part payment of any of the sums past due and which he failed to pay regularly each month, as the order of the court required. In other words, as Mrs. Barnett (the former wife of the defendant and mother of the two minor children named in the information, she having intermarried with Prank Barnett after the divorce from the defendant) testified, the defendant paid in the year 1914 $17.50 only, on December 22, 1915, he paid $10, in the year 1916 he paid nothing, in the year 1917 he paid $170', in the year 1918, $220, in 1919 $190, in ■ 1920 $228.80, in 1921 $130, in 1922 $100, and on January 5-, 1923, $100': All the foregoing amounts, Mrs. Barnett testified, were, with the exception of $100, applied to the payment of old bills which had accrued by reason of the support, etc., of the minor children. She testified that at the time of the trial, which took place on the fourth day of March, 1924, the defendant was still indebted on account of the order for his payment of $20 per month for the children in the sum of $781.17. It appears, though, that on the fifth day of October, 1923, a writ of execution was issued on the judgment of the superior court awarding her the sum of $20 per month for the care, etc., of the children, in which it was recited that down to that time the sum of $310 had accumulated against the defendant under the terms of said order. Her attention having been called by the attorney for the defendant to the discrepancy between the amount alleged to be due in the writ of execution and the amount she testified was due at the time the trial was had, she still maintained that, although she gave the sum of $310 to the sheriff as the amount then due, the sum of $781.17 was actually due at said time. Mrs. Barnett testified that none of the money paid by the defendant covered the amounts due for the year 1923. She further testified that the sum of $20 a month was at this time inadequate for the proper support, care and education of and for medical attendance for the minor children. The defendant did not himself take the witness-stand. He, however, called as his witness his brother, 'Charles H. Curry, by whom he undertook to prove that the defendant was maintaining a home in the town of Davis, Yolo County, for his mother, and supporting the