People v. Smith

BURNETT, J.

Appellant was convicted' of the offense designated “Failure to provide for a minor child.” He moved for a new trial, which was denied, and he appealed from said order. Defendant and one Bessie Worth were married in Alameda County in November, 1909. While they were living together in' Yolo County in 1911, and about a month before the birth of the child in question, defendant’s wife left him and they have been living separate and apart ever since. During its entire life the child has been in the custody of its mother. The defendant, at the time of the trial and for six years prior thereto, resided in Sacramento. The mother of the child, at the time of the trial and for three years prior thereto, resided at Nelson, Butte County. Dhr

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ing the first six months of the year 1917 the defendant paid to the wife for the support of the child the sum of $75— fifteen dollars per month for January, February, and March, and ten dollars for each of the remaining months. It appears, also, that the child had a good home with its mother and its wants were amply provided for. It is true that the ■mother claimed that the child needed some winter clothing, but certainly such need was not very urgent on the 1st of September, when the offense is alleged to have been committed. Indeed, in response to questions on cross-examination, the wife testified that she provided a good home for the

child;

that it had enough clothes to keep it warm, and plenty to eat, and that “she had all those things during the last year from January on.”

Appellant contends: “First, that the superior court of Butte County has no jurisdiction to try him for the alleged offense, but that, if any offense was committed it occurred in the county of appellant’s residence, namely, Sacramento Comity. Secondly, appellant was and is under no legal liability to support the child for the reason that he and his wife are and have been living separate and the latter has at all times had, the custody of the child. Thirdly, that the child having been voluntarily provided with necessaries by persons other than its father, the latter has committed no crime.” It is further claimed that the prosecution failed to prove the ability of the defendant to support the child, and that the court committed griefvous error in permitting the wife to testify against the defendant without his consent.