People v. Schlott

BEATTY, C. J.

The defendant was charged under section 270 of the Penal Code with willfully omitting, without lawful excuse,' to furnish his minor child with necessary food, clothing, shelter, and medical attendance, he having the ability so to do. Upon his trial he was found guilty, his motion for a new trial was overruled, and a sentence of fine and imprisonment imposed. This judgment and order were affirmed by the district court of appeal (11 Cal. App. Dec. 594). One of the grounds upon which a reversal of the judgment had been claimed was the fact that the custody of the child had been 'awarded to its mother in a divorce proceeding whereby, it was contended, the defendant had been relieved of all obligation to provide for its support. This point, however, was found to be unsupported by the record, which contained no evidence of the divorce, and for that reason alone its legal sufficiency was left undecided. Subsequently, upon petition of the defendant, and consent of the attorney-general to a correction of the record, a rehearing was granted by the district court of appeal, where on April 10, 1911, the judgment and order of the superior court were reversed upon the sole ground

[349]

that the care and custody of the child having been awarded to the mother by the decree of divorce the defendant was no longer under any obligation to provide for its support (12 Cal. App. Dec. 523). The attorney-general thereupon petitioned this court for a rehearing, which was granted for the sole purpose of further considering the effect of the decree of divorce—the court being entirely satisfied with the opinion of the district court of appeal as to other assignments of error.

The defendant, in support of his contention as to the effect of the decree awarding the custody of his child exclusively to its mother, relies principally upon section 196 of the Civil Code, and upon the construction which he claims was given it by the court in

Selfridge

v.

Paxton,

145 Cal. 713, [79 Pac. 425]; and it is upon the supposed authority of that case that the decision of the district court of appeal sustaining his contention is placed.