People v. Forester

BURNETT, J.

Appellant was convicted of a violation of section 270 of the Penal Code, in that he “willfully omitted without lawful excuse to furnish necessary food, clothing, shelter and medical attendance for his three minor children by his divorced wife.”

Many points are made by appellant, but as we are satisfied that the cause must be reversed for a failure of proof as to a vital element of the crime charged, it is probable that the other questions will not arise again, and we therefore forego any discussion of them.

It is admitted by the attorney-general that it should be made to appear that the father has the ability to supply what is needed or else a conviction is not supported. Indeed, it is apparent that inability without fault is a “lawful excuse”

[461]

for the failure to discharge this parental duty. “While it is the duty of a parent to support his children of tender years, yet in order that he be imprisoned for failure to obey an order of the court in connection therewith, it must affirmatively appear that he has the ability to comply with the order of the court.”

(In re McCandless,

17 Cal. App. 222, [119 Pac. 199].) In that case the petitioner had been committed to the custody of the sheriff on account of his failure to make certain monthly payments directed by the superior court for the support and maintenance of his minor children. As to the question involved, though, the principle is the same. Therein is cited

In re Cowden,

139 Cal. 244, [73 Pac. 156];

Ex parte Cohen,

6 Cal.

319; Ex parte Rowe,

7 Cal. 175;

Ex parte Silvia,

123 Cal. 293, [69 Am. St. Rep. 58, 55 Pac. 988], which are to the same effect.

In

State