People v. Clarke

SHAW, J.

On August 13, ,1920, an information containing two counts was filed against defendant. By the first count he was charged with the crime specified in section 270 oí the Penal Code, and by the second he was charged with the crime of nonsupport of his wife, as defined in section 270a of the Penal Code.

At the close of plaintiff’s evidence, defendant’s motion for a dismissal of the accusation contained in the second count of the information was granted, and thereupon the trial of the case proceeded upon the charge contained in the first count of the information, the result of which was the conviction of defendant; and from the judgment pronounced thereon he prosecutes this appeal.

Section 270 provides that “a parent of either a.legitimate or illegitimate 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 years, or by fine not exceeding one thousand dollars, or by both. ’ ’

Of the several grounds for reversal urged by counsel for defendant, we deem it unnecessary to consider other than that of the sufficiency of the evidence to justify the verdict rendered by the jury.

On June 1, 1919, the defendant, then a young man of twenty-one, was married to Ella Winn, who was of the age of eighteen. He was just out of the army and his worldly goods consisted of about $150. In the latter part of August, 1919, prior to which time he had been engaged in odd jobs

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of work in San Diego, where they were married, he went to Oakland where, a few weeks thereafter his wife, at his request and with money sent by him, followed, and the two took up their abode with the husband’s mother. The wife was then pregnant and expected the birth of a child the latter part of March. She appears to have been unhappy and dissatisfied with her environment and so notified her parents in San Diego, who, on October 20, 1919, went to Oakland, where, as a result of their persuasion and insistence, defendant consented that his wife should return to the home of her parents in San Diego, pending confinement, and at the same time they extended an invitation to him to accompany her, which defendant declined. It appears that about March 6th defendant received a letter from the district attorney of San' Diego County, the contents of which, however, are not in evidence, but in response to which he sent his wife $65. This money it appears, instead of being expended for clothing for the baby, born on February 27th, was applied in payment of a nurse who attended the wife during confinement. The mother, as contemplated when she left her husband in Oakland, and, after its birth, the child made their home with her parents, who were well-to-do and able to and did provide her, as they insisted upon doing, with a home, food, and shelter; and although defendant, other than contributing the $65 applied to the payment of her nurse and some small articles of clothing, supplied no money, the baby, as stated by the wife, had never been in want of necessaries, but at all times had food, clothing, and medical attention when necessary, which were voluntarily provided by her father. The court properly instructed the jury that defendant’s failure to make provision for the support of the child before its birth and before he knew of the birth of the child did not constitute a crime; hence the offense, if established, must be based upon defendant’s neglect to supply the child with necessary food, clothing, shelter, and medical attendance during the first five months of its existence. The evidence touching this question is exceedingly meager. It cannot be said that, because defendant yielded to the persuasion of his wdfe’s parents that she abide with them, such fact constituted neglect to furnish shelter; and as to medical attendance, there is no evidence whatever that the child ever at any time required such at