
    [Crim. No. 440.
    Third Appellate District.
    September 10, 1918.]
    THE PEOPLE, Respondent, v. F. J. SMITH, Appellant.
    Criminal Law — Parent and Child — Failure op Father to Provide for Minor—Willfulness of Neglect Essential.—Willfulness and the absence of lawful excuse are essential elements of the offense of a parent omitting to furnish necessary food, eta., to a minor child, as defined in section 270 of the Penal Code.
    Id.-—Inability as an Excuse.—A parent who, without fault, is financially unable to support Ms minor child, cannot he justly charged x with willful failure in that respect.
    Id.—Payment by Parent of Debts.—A father having only a meager income should have devoted it' to his child rather than to have used it for the payment of his debts, if the child had been in need of the necessaries of life, but where the child was receiving from its mother all that it required for its support and comfort', the father’s conduct under the circumstances was not felonious,
    APPEAL from an order of the Superior Court of Butte County denying the motion of the defendant for a new trial. II. D. Gregory, Judge.
    The facts are stated in the opinion of the court.
    R. Platnauer, for Appellant.
    U. S. Webb, Attorney-General, and J. Chas; Jones, Deputy Attorney-General, for Respondent.
   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. Dhring 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.

All these propositions are learnedly argued, but we consider it necessary to notice specifically only the one relating to the ability of the father to contribute to the support of his child. And we consider the question as it bears upon and relates to the element of willfoilriess, which is an essential factor in the crime charged.

The offense is defined in section 270 of the Penal Code 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” etc. It is plain, therefore, that the omission to furnish such necessities must be willful and without lawful excuse to justify a verdict of conviction. A careful reading of the record, however, satisfies us that in this respect the case fails to meet the requirement of the law. The evidence shows that appellant is a laborer owning no property, his work consisting of cleaning house, picking fruit, cutting grass and doing odd carpenter work. He worked off and on whenever he could find employment until early in June, 1917, at which time he went to the hospital for medical treatment and remained until July 27th. After the care and treatment of the doctor ceased, appellant went to work cutting grass, and as a result he had a relapse and took to his bed with a fever. "Upon his recovery he sought and found temporary work at different jobs. This continued during the latter half of the year. He also worked for his mother, at general housework and taking'care of the yard, for which he received his board and lodging. It is fair to say that from June to December he earned not more than $60 in money. His hospital and medical bill was $58. A portion of this— but how much does not appear—was furnished by his mother. He still owes the doctor one hundred dollars for his services. It is thus apparent that he was financially unable to support his child. Furthermore, the evidence shows that defendant worked whenever he could obtain employment and was able to work, and also that he searched for employment without success. It cannot be said, therefore, that his impecuniousness was chargeable to indolence, nor is there evidence that he was guilty of any misconduct which prevented better results. If a defendant, without fault, is financially unable to support his minor child with the necessaries of life, he cannot; of course, be justly charged with willful failure in that respect. (In re McCandlcss, 17 Cal. App. 222, [119 Pac. 199]; People v. Turner, 29 Cal. App. 193, [156 Pac. 381] ; People v. Forester, 29 Cal. App. 460, [155 Pac. 1022].)

The only possible answer to this position is that he should have devoted his meager income to his child rather than to have used it for the payment of his debts. There would be force in this contention if the child had been in need of the necessaries of life. But as it was receiving from its mother all that it required for its support and comfort, we think the father’s conduct, under the circumstances, should not he characterized and denounced as felonious.

It is pleasing to add that when the appeal was taken the appellant was able to give a bond for the payment of $25 per month for the support of his child, and it is to be hoped that he will be willing and able to continue such payment.

The order is reversed.

Chipman, P. J., and Hart, J., concurred.

A petition for a rehearing of this cause was denied by . the district court of appeal on October 10, 1918, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 7, 1918.  