People v. Champion

[464]

CONREY, P. J.

Appeal by the defendant from the judgment, and from an order denying his motion for a new trial.

Defendant was convicted of the offense described in section 270 of the Penal Code, and sentenced to imprisonment in the county jail of Los Angeles County for a term of three months. The charge was that the defendant, during a certain period of five months in the year 1915, willfully omitted to furnish necessary food, clothing, shelter and medical attendance to his minor children named in the information. There are no briefs on file, and we shall confine our attention to the propositions urged on behalf of appellant at the oral argument.

In January, 1915, in an action of divorce in the superior court of Los Angeles County wherein this defendant was defendant, and the mother of said minor children was plaintiff, the court denied the plaintiff’s petition for a divorce, and decreed that the defendant as cross-complainant was entitled to a divorce from the plaintiff. The court having further found that both parties were fit to have custody of the children, awarded the custody of them to the mother, and after making certain provisions concerning the property interests of the parties, ordered that the defendant pay $6 a week for the support of said minor children. Counsel for appellant, after directing our attention to these facts, contended that under the evidence in this case it appears that the order for payment of money by him was made by his consent upon a stipulation, and that to imprison him for failure to make payments in accordance with that decree is to" imprison him for debt, which he contends would be a violation of defendant’s constitutional rights.

The record clearly establishes that the decree and order in question derived their force entirely from the power of the court, and not from any contract or consent on the part of defendant. In an action for divorce the court has authority to make such order for the custody, care, education, maintenance, and support of the minor children as may seem necessary or proper. (Oiv. Code, sec. 138.) The fact that during the period of time covered by the information in this case the children were not in the custody of their father, made it necessary for the prosecution to show that his obligation to contribute toward the support of the children was not suspended, as he might have contended that it was under