In Re Madalina

LORIGAN, J.

Petitioner seeks his release in this

habeas corpus

proceeding from the custody of the sheriff of Sonoma County, who holds him under a commitment by a magistrate to answer before the superior court of that county for failure to provide for his alleged illegitimate child. The facts presented on the hearing before the magistrate and upon which the commitment was based, but which are claimed to be legally insufficient to warrant his detention, are stipulated by the attorney for petitioner and the district attorney of Sonoma .County.

The petitioner was prosecuted under section 270 of the Penal Code as amended in 1915 [Stats. 1915, p. 572], which reads as follows: “A parent of either a legitimate or illegitimate minor child who willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his child, is punishable by imprisonment in the state

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prison, or in the county jail, not exceeding two years, or by fine not exceeding one thousand dollars, or by both.”

The facts as stipulated are that the minor child referred to in the complaint is about eight months old; that it was born in lawful wedlock to a woman whose husband was alive when said child was born to her, and between whom there had been no judgment of divorce. At the preliminary examination, so it is stipulated, the mother testified to the nonaccess of her husband, or of any person other than said petitioner, for a period of two years next prior to the birth of the child. It was further stipulated that no action had ever been begun by the said mother or by any other person, under section 196a of the Civil Code, to determine the parentage of said child, or to obtain a judgment against the petitioner or any other person for the support of said child and that there is no such judgment.

In disposing of this petition several sections of the codes are to be taken into consideration.

Section 196a of the Civil Code, a moment ago referred to, provides: “The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, and in such action the court shall have power to order and enforce performance thereof, the same as under sections 138, 139, and 140 of the Civil Code, in a suit for divorce by a wife. ’ ’