In Re Bryant

PRESTON (H. L.), J.,

pro tem.

Albert Bryant, the petitioner, is now in the custody of the sheriff of San Benito County, and seeks his release on

habeas corpus.

The facts revealed by the record are briefly these: Petitioner is the father of two minor children. He abandoned his wife and these children in San Benito County in 1922. His wife obtained a divorce in San Benito County in 1924, and the custody of the children was awarded to her, and

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she and the children since 1924 have continuously resided, and now reside, in Hollister, San Benito County. Petitioner has been absent from San Benito County since 1922 and his whereabouts unknown to his wife and children, and he has not since 1922 contributed anything whatever towards the support of said children, nor has he visited or attempted to visit or communicate with them since 1924. In July, 1928, petitioner was located, arrested, brought back to San Benito County, and charged with a violation of section 270 of the Penal Code. The charging part of the complaint which was filed in Hollister township, San Benito County, is as follows: “That said Albert Bryant on or about the 19th day of July, 1928, at and in said County of San Benito, State of California, who was then and ° there the father of two minor children, to-wit, Alberta Bryant and Edna Bryant, did wilfully and unlawfully and without lawful excuse, omit to furnish said minor children with necessary food, clothing, shelter, medical attendance and other remedial care.”

A preliminary examination was had before the justice of the peace of said township, and the petitioner was held to answer to the superior court for failing to support his minor children and, in default of bail, was committed to the custody of the sheriff. Thereafter, and on the thirtieth day of July, 1928, the district attorney of San Benito County filed an information against him, charging him with the same offense. The case has not been tried in the superior court. On August 8, 1928, the petition for a writ of

habeas corpus

was filed in this court.

The first contention made on behalf of petitioner is that the evidence produced at the preliminary examination fails to show that any public offense has been committed. This contention is grounded entirely upon the fact that there was no direct testimony introduced at the preliminary examination that petitioner’s failure to support his children was “wilful and without lawful excuse.” The statute itself, however (sec. 270, Pen. Code), makes this proof unnecessary. Mrs. Bryant testified that petitioner abandoned her and the children in 1922, and since that time has contributed nothing to the support of the children. This proof meets all the requirements of the statute.