People v. Russell

[493]

PLUMMER, J.

Appellant was tried and convicted of the crime of failing, without lawful excuse, to furnish necessary support for his minor child, and sentenced to serve 180 days in the county jail of the county of Sacramento. Defendant’s motion for a new trial being denied, he appeals to this court therefrom and from the judgment of conviction above named. The only question assigned for reversal is that the judgment is contrary to the evidence. It appears from the transcript that during the year 1923 the defendant took the prosecuting witness, Mrs. Russell, then an unmarried woman, out for an automobile ride, and during the course of this automobile ride an act of illicit intercourse took place, which resulted in her pregnancy.. During the month of February following the prosecuting witness and the appellant intermarried. The appellant made the defense that he was not the father of the child. The testimony on the part of the prosecution is to the effect that the automobile ride just mentioned took place some time between the first and sixteenth days of July, 1923, that the child was born the tenth day of May, 1924. The testimony is all to the effect that only one act of sexual intercourse took place prior to the marriage. The prosecuting witness testified particularly as to the occurrences, as to the automobile ride, as to the dates and as to the fact of the appellant being the father of the child. The prosecution also introduced the testimony of five additional witnesses, who all testified that the appellant had said to them at different times that the child was his. The testimony also shows that the father visited the mother at the hospital a few days after the child was born, that he participated in naming the child, and did some other acts indicating acknowledgment of parentage. On the part of the prosecution there was further additional testimony to the effect that the automobile ride in question was taken in a roadster. On the part of the defendant and appellant testimony was introduced to the effect that the illicit act took place on the nineteenth or twentieth day of May, 1923; that the roadster referred to in the testimony of the prosecuting witness was in the town of San Mateo from the first to the twenty-third day of July, 1923; that the ride was taken in a Paige roadster on the evening of the nineteenth or twentieth day of May before stated, and that the same Paige roadster was not in the city of Sacramento at any time during the