174 P. 105 | Cal. Ct. App. | 1918
The petitioner alleges that he is illegally restrained of his liberty by the sheriff of Solano County, and makes this application to this court for a writ of habeas corpus to the end that he may be released from such unlawful restraint.
The petition for the writ alleges that on or about the fourth day of February, 1918, the petitioner was arrested on a warrant issued by one S. A. Cripps, justice of the peace of Elmira Township, in said county of Solano, upon a complaint charging petitioner with willfully omitting, without lawful excuse, to furnish his minor child, Henry Perry, with necessary food, clothing, shelter, etc. (Pen. Code, sec.
It is further alleged that, on the twenty-eighth day of April, 1915, the superior court of the said county of Solano, in an action between the petitioner as defendant and his wife, Grace Perry, as plaintiff, made and entered an interlocutory decree of divorce, wherein and whereby said Grace Perry was adjudged to be entitled to a divorce from petitioner, upon the ground of desertion; that said decree provided, among other things, that the custody and control of the minor children of petitioner and said Grace Perry, to wit, Robert Winchell Perry and Henry Arthur Perry, be awarded to said Grace Perry; that said interlocutory decree of divorce so rendered and entered in said action made no provision whatever for any support of said children; that thereafter, to wit, on the fourth day of May, 1916, the said superior court of the county of Solano rendered and caused to be entered its final decree of divorce, wherein and whereby all the terms of said interlocutory decree "in regard to the custody and control of said minor children were confirmed and ratified"; that "said interlocutory decree of divorce and said final decree of divorce have never been altered or modified in any respect whatsoever, and still are in full force and effect as rendered and entered; that there have never been any proceedings brought under sections 138 and 139 of the Civil Code to require said Luther R. Perry to contribute to the children's support."
Attached to and made a part of the petition is the judgment-roll in the said divorce action.
The sheriff, in his return to the alternative writ, answers: 1. That he holds the petitioner "under and by virtue of his violation of the 'order suspending the imposing of sentence and releasing the defendant (petitioner) on probation,' made by the superior court . . . in and for the county of Solano, on the seventeenth day of July, 1914"; 2. That, further, he holds petitioner by "virtue of a commitment issued by the Hon. S. A. Cripps, justice of the peace of Elmira township, county of Solano, . . . on the fifteenth day of March, 1918, holding to answer upon a charge of failure to provide for his minor child, Henry Perry, the within named defendant (petitioner), Luther R. Perry." *191
The first of the above-stated grounds upon which the sheriff undertakes to justify the restraint of the petitioner constitutes the basis for the application to this court for the writ of mandate in the case of People v. O'Donnell, post, p. 192, [
The reply to the question thus propounded is not, in view of the many adjudications of the proposition involved therein in California, fraught with serious difficulty.
It has frequently been held that where, by a decree of divorce, the custody of the minor children of the parties is awarded to one of the parents, without charging upon the other parent the support of such children, the parent to whose custody the children are so awarded is, under the terms of section
In People v. Schlott,
In the present case, as we have seen, the decree in the action for divorce between petitioner and his wife awarded the custody of the minor children to the latter, but made no provision whatsoever for the support of said children by the petitioner. From this state of the facts and the cases above referred to, it necessarily results that the order of the magistrate of March 15, 1918, holding the petitioner for trial in the superior court for the alleged violation of section
From the foregoing and the conclusion arrived at and announced in the case of People v. O'Donnell, supra, it follows that there is no legal justification for the holding of the petitioner by the respondent, sheriff, and the prisoner is, therefore, discharged from the custody of said respondent.
Chipman, P. J., and Burnett, J., concurred.