271 P. 926 | Cal. Ct. App. | 1928
Albert Bryant, the petitioner, is now in the custody of the sheriff of San Benito County, and seeks his release on habeascorpus.
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 *793
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
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.
[1] 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.
The statute itself (sec.
[2] Petitioner contends that section
The same principle is involved in section 1105 of the Penal Code. Under that section, when the people have proved the killing, and no evidence has been given tending to prove justification, they have performed the task imposed upon them, and have proved prima facie the guilt of the defendant beyond a reasonable doubt.
By reason of the statutory rule of evidence laid down in section 1105 the prima facie case of the prosecution can be overcome only by proof of justification, excuse or circumstances of mitigation. (People v. Rodrigo,
Other contentions made on behalf of petitioner are without merit and require no discussion.
The writ is discharged and the petitioner remanded to the custody of the sheriff of San Benito County.
Koford, P.J., and Nourse, J., concurred.