*1 as all affirmed twelve counts. prison and otherwise is trial is motion for new affirmed. denying order defendant’s directions “to remanded to trial court with The cause is hearing and determin- suspend purpose for the sentence psycho- not the defendant ... sexual ing whether or hearing, requested and after path,” grant defendant Department of hearing such to commit the ac- prison may be determined or to a state Institutions premises other cording to and to make orders law, may appeal “from the Court’s purported be meet. The refusing adjourn . . .’’is dismissed. proceedings Shenk, Edmonds, Carter, J., Tray Gibson, J., J., J., C. nor, J., Spence, J., concurred. 5687. No. In Bank. Feb.
[Sac. 1946.] ROSEMARY WALTER MUNSON, Appellant, C. Respondent. MUNSON, *2 Appellant. Blaine McGowan for Respondent. Chester Monette an SCHAUER, J. order modifies decree From marriage of the minor annulment award father, plaintiff ap- parties child defendant mother trial peals. urges changing She action court’s cus- tody an to the father abuse of discretion. the mother was upon argument sharply Plaintiff’s based her view conflicting evidence. We have concluded that witnesses, judge, including the trial saw and heard the who the parties, and found sufficient evidence for the best the child that be awarded to interest the defendant, cannot be disturbed. parties on November 1941. On March intermarried ground
31, 1944, marriage on that de- was annulled living fendant, plaintiff, unknown to had another at wife marriage plaintiff, apparently having pro- time interlocutory, final, an but not divorce. cured a' decree of The decree of annulment of the minor child awarded parties (a boy age) of the then 20 months of provided mother and visit “may defendant with said places.” minor child all reasonable times and The terms of the order at the time it made in accordance with provisions of agreement parties March dated 15, 1944, agreement, however, and filed with the Such decree. required thirty days, within to remove from her place then of residence enter or establish suitable and proper home for herself and the minor child. Defendant did not appear and represented by was not counsel proceedings. annulment May 18, 1944,
On petition modify filed his annulment decree to award child to him. Plaintiff changed had not place of residence. The modi- sought fication was ground that the best interest and *3 welfare of the by child would be subserved petition and the was based proposition both plaintiff that was maintain- ing child in an unfit proposition residence and on the plaintiff that was proper or person fit to have control of him. hearing After conflicting evidence the trial judge (the judge same who made the original decree) filed opinion memorandum in which he found that the home wherein plaintiff and the minor child resided orderly, “is neat, clean, well-kept,” and stated that “The issue in a case such as this is not the condition home, but it is the fitness of parents to supervise care, custody, and con- trol of the and what is for the best interest of the child” (see Prouty Prouty (1940), 190, 295]; Code, Civ. 84, 138, (1)), subd. and found §§ “that defendant is better fitted to duty, exercise that it appears and that the best interest of the child will be served if he awarded to of defendant.”
Plaintiff and the minor child lived in the five-room home of plaintiff’s mother. The room plaintiff which and the minor occupied child (“six by eight” was small according to defen- testimony) dant’s with two small windows, one of which could not opened. Also residing plain- the house were sister-in-law, mother, and and the latters’
tiff’s her brother three-year-old from $30 child. Plaintiff received month de- 10, April fendant On about of the child. employment she a month. Her obtained sister- $108 in-law cared when was at work. child plaintiff annulment he
Defendant testified since the had seen body five black and that on and blue across Ms son’s marks April 17, plaintiff’s mother, presence in the being [plaintiff] and told “about her out of humor defendant probably her off pull and had to from tired wore out she beating baby.” Plaintiff she had never testified that whipped the make marks” had child “to hurt him or beating never had him. Plaintiff’s to be restrained mother had seen the child black and testified that she never marks beating; blue from “I him on him seen day his father tipped where he him one while was a chair on [plaintiff] from there. ... I restrain her beat- never had to thought spanked I ing baby]. I did she interfere when [the him Introduced too hard . . . with her hand.” by paddle objection a wooden defendant without dozens of times” testified he had seen “used plaintiff Both spank plain- child. her sister-in-law they in the tiff believed testified sister-in-law discipline. paddle propriety of such and effectiveness plaintiff’s taken property was the sister-in-law permission. defendant without her granting annul- testified that since the Defendant liquor influence of “sev- ment he had seen his wife under the average.” De- week, on an eral times . . once or twice a . home after plaintiff come fendant occasion to observe had plaintiff's atwas “pretty work intoxicated” because well baby. Plain- visit the evenings five each week to home six they had never neighbors mother tiff’s and two testified testified plaintiff sister-in-law intoxicated. Plaintiff’s seen presence intoxicated never seen that she had in- asked, you “Have been child. of the minor Plaintiff was an- your minor child?” presence of toxicated in the *4 she I of.” was asked whether swered, “Not that She know times,” an- you intoxicated at “so become drank that If it is you call drunk. depends “No, it all on what swered, feeling I been way. have out, I that passing have never been good.” decree the annulment that the time Defendant testified learned, that know, did later entered he not but
was having Tippie man “If “an affair” with a called was granted] I was had known at the annulment this time [the baby”; I naturally fought that defendant would have for knowledge Tippie own “has had several knew cases of . The man trouble with other married women. . . him—my I him out us, for I dad and bailed worked known jail baby usually every twice. He has a of his own and gets jail three On the nonsupport.” or four in months evening testified, plain- April, of the 25th of defendant tiff told him and would Tippie “was over at the house like me, enough I guts to see if had come over . . . with her, he like tell that he had—hadn’t had unchaste would me night, I her, relations with did.” At 12:45 that de- so testified, Tippie through fendant the window saw crawl plaintiff’s into stated, where, bedroom the minor child slept. also Plaintiff man had ever crawled testified that no through According testimony the window of her room. to the of plaintiff, sister-in-law, diffi- mother and it would be impossible cult if through not for a man crawl this window. In evidence, however, (which was a letter found open in and took plaintiff’s home) 6, 1944, dated May to Tippie, written reading part, but not mailed “If really thought I coming any you there was chance down, hon, only my bigger, I’d not but made window I’d even yard tent, move out in pitch then I’d be you’d sure get in.” Plaintiff testified on cross-examination “just gag. reference to the . . He window was . had kidding been about he would come down and crawl my window.” The continues, “Well, daddy darling, letter here it is 10 o’clock just got is, I home That from work. I left at six but Mrs. Eller I picked up stopped Ina and and we place just at her one end at shot and it didn’t that. I did pretty high feel while, for a I’ll but don’t think feel so good tomorrow.” Plaintiff testified cross-examination that she drank four highballs on this occasion.
Plaintiff properly in her does contend briefs that the above mentioned letter erroneously admitted evi dence but nevertheless, suggested since the matter has been in discussions in court, given consideration has been it. When the letter plaintiff’s objected was offered counsel ground it on the “incompetent, irrelevant immaterial. . .. The property person letter is the of some and I think before it can proceeding be used of this sort
664 ought explained why it at least he how and he to [defendant] possession (Italics added.) objec it.” came into the The tion was and on cross-examination ex overruled plained visiting “laying letter while his son found the [plaintiff’s] place, in table the front room in resi laying unsealed, dence . . . there unmailed” and that he asking took per it and several letters of own without anyone. (After explanation mission of such no motion to interposed.) strike the letter properly The letter was general admitted. The rule in California is that “where competent produced evidence is on a trial the will courts stop inquire investigate or the source from whence comes (People or the means v. which it was obtained.” Mayen 435, 24 (1922), 237, 188 243 A.L.R. Cal. [205 1383]; (1935), 4 412 Herrscher State Bar [49 People P.2d 832]; (1944), Cal.App.2d 894, v. Peak 66 904- 905 464].) question admissibility P.2d “The [153 wrongfully usually arises in criminal obtained cases. . . . wrongfully illegally But the use of evidence obtained is not confined to criminal eases and no distinction has ever been in respect prosecu made civil between actions and (20 393.) tions for crime.” Am.Jur. The case of § Superior Cal.App.2d Kohn v. (1936), Court 1186], suggested recognizing which has been as different rule, prohibition proceeding arising was a a replevin out of making action ruling carefully pointed and in its the court 463) out that (p. very “the issue before the court was whether wrongfully documents in suit had been taken from this plaintiff.” ruling The and discussion in case have no pertinence any question if, the case at bar. Even evidence, to the admissibility of such a distinction between purely private right public actions those which a inter est is proper, public involved were rule should interest prevail adversary proceeding here. This is not a mere be plaintiff contrary tween and defendant. On the con trolling rights are those of the minor child and of the state in the welfare, properly so child’s and the trial court held. suggested opinion
It has also been certain evi dence, given by acquainted witnesses with defen who dant, good to the effect father and fit and that he was proper person son, have the of his was “entitled weight Regardless to no consideration.” to which such testimony prejudicial receipt was entitled error its no defendant, (without severally shown. Both instance), objection, except other one adduced various witnesses of their evidence from respective claims to fitness. testimonies of the witnesses opinions largely who concerned observation stated conduct and witnesses parties character manifestations of the certainly not improper. to that extent was As defendant, question one addressed to one witness question opinion called for the witness’ defendant’s *6 son,” objected on ground fitness the to “raise his question “incompetent, irrelevant and imma- terial proper and no has been laid.” far as foundation So question is foundation concerned witness had years testified that she known the defendant for fourteen had and that he of her roomed the home husband and herself. opinion Even if we assume that the asked for was incompetent prejudicial there was no permitted error as three other witnesses give testimony objec- to to same effect without may mother, tion. it Furthermore, plaintiff’s be noted that plaintiff, who was witness on cross-examination testi- fied “greatly that defendant concerned about the welfare child”; guess good of his “I father, right, is a all as feeding things far loving go.” as like that Defendant testified that he roomed and boarded with Mr. (Mrs. Granberg Granberg Mrs. is the witness above objection mentioned permitted give opin- who was over to ion son), as to defendant’s fitness to raise his who have two daughters, aged 15; about 11 and if he was awarded Granberg of his son him he intended to take into the home; very Granberg willing that “Mrs. is to be a mother him, to I Granberg when am not Mrs. there.” testified to the same effect.
The conduct, evidence as to defendant’s like that above sharply summarized as the conduct of is conflicting. Except taking for the admitted of the letter paddle evidence, defendant introduced the tes timony which, plaintiff asserts, conduct child, his indicates unfitness to have minor re prior lates to occasions to the annulment. if all testi Even mony past as to defendant’s never believed, misconduct was question a parent theless “The as to is fit proper whether person minor child of a refers ... hearing or her fitness at the time of and is not neces ” sarily prior controlled . . . thereto. conduct [Citations.] (Prouty Prouty (1940), supra, 16 Cal.2d 295].)
Plaintiff proposition that, relies on the as between parents claiming adversely custody, things being “other equal, years, given if the child is of tender it should be (Civ. Code, 138, the mother.” which refers to actions for § divorce; proposition equally applicable here.) is The clearly above recited is sufficient to the de things” termination of the trial court that “other are not equal determining ease. things “In whether other equal are meaning section, within the of the above code trial necessarily court is allowed a wide latitude the exer cise of its discretion. In the first instance is for the trial determine, court to considering evidence, after all the how the best interests of question the child will be subserved. to be solely from standpoint determined feelings contesting parties desires are not to considered, except they far so affect the best interests (Taber (1930), child.” v. Taber Cal. 756 [290 36].) application It is settled “An for a modi legal fication of an award of is addressed to the sound discretion court, of the trial and its discretion will not dis turbed on appeal unless clear presents the record case of ” *7 (Foster abuse of that discretion. v. Foster [Citations.] (1937), 8 719, 719].) 730 P.2d [68 recognized (Foster Foster, supra,
This court has
v.
pp.
726, 728
Cal.2d)
generally
of 8
change
“until
that
some
of
circumstances arises which makes a modification of
former
the
order
of
from
point
advisable
the
of view
the
of
welfare of
give
the
court
the
will
effect to the former
’’
order
order,
and will
any
refuse to make
modification of such
but that there may
which, despite
be
“in
the
that
cases
fact
there
apparently
change
circumstances,
no
neverthe
less,
might require
previous
welfare of the child
order
changed”
Bogardus
Bogardus
(citing
v.
(1929),
Gibson, J.,C. Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred.
CARTER, J.I appeal dissent. this case was first heard the District Appeal, Court of Third Appellate Dis- trict, and opinion the majority prepared by Presiding Justice Adams and Associate Peek Justice concurred therein. opinion This contains a full and fair statement of the facts and correctly applies applicable I rules law thereto. adopt therefore my dissenting same as opinion: “This is appeal modifying from an order a decree of marriage annulment of plaintiff defendant, between and changing the custody of parties the child from the mother to the father.
“The evidence shows that and defendant inter- married November 1941; that at time had another living wife divorced, though whom he was not this fact was unknown plaintiff. subsequently The latter *8 filed an action marriage. to annul said Defendant made no appearance, and on March 31,1944, a decree of annulment entered, made and providing said decree also that the minor child of the parties, aged twenty months, then be awarded being granted right defendant to visit said
child at all places, pay reasonable times and plaintiff the sum per $30 month for the of such provisions regarding child. The the child’s con- agreement formed parties to an entered into between the set- tling rights such property they providing had and plaintiff should have the of her child. Less than two months later, May 18, 1944, petition on defendant filed a modify the provide care, annulment full decree to control of the child him. The be awarded to grounds alleged in petition that: “ ‘1. Plaintiff proper person is not a fit and to have con- trol minor, of said granting that since the of said decree she has become intoxicated pres- at least twice week ence of minor; said permits she a certain man come through the window of the house where she maintains said minor to visit her in her bedroom. “ plaintiff maintaining That is said minor child in a ‘2.
residence place that is not proper a fit and of residence for the best interests and welfare of said minor in direct viola- tion of separation agreement her written which defendant incorporates part fully and makes if Petition as set ’ out herein. “Plaintiff petition denying allegations answered said thereof; hearing May 24, 1944, The matter on came and on June the trial court filed a memorandum of opinion in which it stated: “ ‘There is considerable testimony on the condition of the home in reside; but, and the child from all the report evidence and Officer, of the Probation the said home orderly, neat, clean, well-kept. “ ‘The issue in a ease such this is not the condition home, but it is parents supervise the fitness of the care, custody, and control of the for the what is best subject interest of the child. On this appears it the defendant is better duty, fitted to exercise that and it appears that the best if interest of the child will be served ’ he is awarded to the defendant. finding
“The court unfit, made no the mother but modifying prior awarding made decree and the ‘full care, custody father, and control’ of the child to provision and made no for the mother to even see her infant. Prom present taken, being this order appeal has been
669 trial its appellant contended court abused discre- that the awarding tion in father. the child the considering “Before the let consider certain us principles applicable of a case. Section 138 of law to such provides the the court Civil Code that in actions divorce may, during minority marriage, children make the of the of a care, education, order for their maintenance custody, support may necessary may any proper, seem or awarding modify same; time vacate guided appears court is to be to be for the best what respect temporal interest of child in its its mental welfare; claiming and moral parents between but that as cus- tody, parent right, neither it as of but other is entitled to things being equal, years, is tender should child if of given be mother. to the
“Section of provides 84 in an Civil Code also may proceeding annulment order for the court make such care, the custody, education, of maintenance and marriage, children of except that it must the cus- award tody ground marriage the children of a annulled on the fraud or parent. force the innocent “It is well established determination as to which parent shall the custody a minor child is a matter resting in the of the sound discretion trial court its decision appeal except will not be reversed on where there is a clear However, abuse such discretion. the discretion judicial exercised be a discretion, must and where has change change once sought, been awarded showing must be burden shown, circumstances which is moving party; presumptions and all are in favor of Prouty, v. original (Prouty reasonableness of the decree. 16 190, ; Foster, Cal.2d 193 Foster 8 P.2d v. [105 295] 719, Olson, Cal.App. 594, 726-727 719]; P.2d v. 95 Olson [68 597 1113]; Gavel, 123 Cal.App. Gavel 589 v. [272 [11 P.2d ; Moon, Cal.App.2d v. 185 P.2d Moon 62 654] [144 596]; Cal.App.2d 581, 49 587 Washburn, Washburn v. [122 96]; Cal.App.2d P.2d Inman, In re 32 134 P.2d [89 421].)
“In Moon, said, pages Moon court 186-187: supra, v. “ ‘Undoubtedly authority change the trial court had (Civ. Code, its order respecting custody see. Charla 138). things years, being of her tender “other Because
670
equal”
she should be
(Civ.
having
138.)
originally
Code,
mother.
court
sec.
custody,
in her mother’s
determined that
should
some
she
change unusual circumstance had to
conditions or some
provision.
(Foster
justify
shown to
an alteration
719];
Wash
Foster
P.2d
(1937), Cal.2d
[68
(1942),
“And which is relied “Turning the case now to the court, trial since that justifying the order of main Mrs. Munson was court stated in which that the home kept, and taining orderly, neat, clean and well the child was well, and petitioner healthy admitted the child looked that main charges petition in defendant’s may place be said taining improper in an said child unfit charge plain disproved. In have been his presence tiff of the child de had intoxicated in the become own, he produced testimony except and while fendant no general allegation Munson had seen Mrs. made the that he liquor’ times, that he had ‘under the influence of several average,’ week, ‘seen a on her intoxicated once or twice testify presence intoxicated did not that she had been respondent charges were denied the child. Petitioner’s with whom herself her mother her sister-in-law a drink respondent Plaintiff did take stated that she lives. had a drunkard—that she then, now and but she was not only Mr. Munson took once, been in a bar and that was when neighbor A night birthday, April 8th. her on the of his saw her from Mrs. Munson and who lived across the street neighbor in the Munson frequently, another who visited they had never home both testified that about twice a week Stafford, 299 Ill. seen In Mrs. Munson drunk. Stafford 827], 452, 20 A.L.R. the court said: N.E. “ holding would feel warranted ‘This court not having care, control, man utterly disqualified a has the fact that he education of his children because of intoxicating If we were occasionally liquor. drink of taken a very large per disqualify to that rule it would a adhere pro- occupations all country cent of men engaged. Taking a drink of intoxi- in which men are fessions setting example would be bad presence cants in the of child chewing be a smoking tobacco likewise it. would or So taking occasional example. may It be admitted that the bad chewing smoking of tobacco is liquor or of a drink of or recommendation, appre- but we special to a man aid hold, matter of as a undertake hend that no court would *12 disqualify a man absolutely law, that either or both would considered sufficient having from of his or be ground giving of his child to another who has ’ any no such habit or other bad habit. day age language equally applicable “In this is to a woman. allegation ‘permits to the a certain man
“As through to come the window of the house where she maintains ’ bedroom, testimony said minor in and to visit her her no given charge except petitioner in of this that of himself. a man He testified that he once saw referred ‘Tippie’ go through plaintiff’s the window of room at 12:45 night. by plaintiff at probability This was denied and its is by mother, discredited the testimony her neighbors, women sister-in-law and one of the all of whom testified that the window was small one five or six feet ground, hinged that it was at bottom and had a chain prevented top being opened its more than a foot, little over a that it was almost connected with a window opening adjoining room slept. into the where the sister-in-law by It even testimony discredited own Munson’s baby’s directly window, crib was under the and his statement evening that in ‘Tippie’ go through before he saw window, he had been in Mrs. Munson’s home and that this Tippie man there when he left. heavily upon mushy “Petitioner relies letter love written
by mailed, Mrs. Munson to Tippie, but never which letter purloined Munson home, from the Munson in she and which really thought I any your coming said ‘If there was chance of hon, down, only I’d my made bigger, windows but yard I’d move pitch tent, even out then I’d be you’d get sure acquired by in.’ Whether this letter Munson in what he stated was search for
674 iniquity, of and sequester
or
evidence
their
the
many
necessities of the
the law countenances
devious
ease
cases,
securing
of
in criminal
this rule has
methods
evidence
always
Superior
in
In Kohn v.
applied
not
actions.
been
civil
Court,
Cal.App.2d
1186],
12
459
P.2d
docu-
where stolen
[55
evidence,
in
the
in
attempted
said,
ments
court
were
to
read
replevin
claimed,
action,
if, as
documents
a
the
taken,
duty
the
wrongfully
had been
‘then it was the
of
court
as
inspection
to order them
him with as little
the
returned to
to,
a
aid,
party
permit
issues would
and not
become
to
’
wrongful
(Also
taking
Kohn
any respect
in
whatever.
see
248
Bank,
Cal.App.2d 246,
22
v. Crocker First National
[70
cases,
in
may
P.2d
whatever
rule
989].) But
be the
criminal
are in-
public
in
and
other eases where the interests of
rights
volved,
us, purely private
case
where, as
before
infringed
involved,
party
are
a
action has himself
party and
letter
rights
of
stolen a
constitutional
the other
using
in a
purpose
against
from her
of
civil
principle
3517 of our
action, the
set forth in section
Civil
wrong,’
Code,
advantage
his
one can
of
own
that ‘No
take
trial
opinion
of
applicable;
becomes
and we are
permitted
proceeding
should not have
court
such as this
a
petitioner
advantage
wrong
purloining
to take
its
party
use.
letter,
should
refused to become
have
testimony
four
“Petitioner
wit
also relies
as to
him,
opinions
nesses
asked their
called
who were
person to have
he, Munson,
proper
a fit and
was
whether
were:
custody
typical question
A
and answer
of the child.
‘Q.
your
proper person
opinion
In
fit
is he
[Munson]
say
I
he
?
would
would
of his own son A.
opinion
far
I
is entitled
be, as
Such
know.’
1870,
Code Civil
consideration whatever. Under section
no
only on matters
may
given
Procedure, opinion evidence
thereof;
except
the instances
covered
9
by subdivision
testify
opin
to facts and
provided a
must
therein
witness
Cal.App.2d 359, 366
P.2d
(Moore Norwood, 41
ions.
v.
[106
parent
to have
939].)
the fitness
Opinion evidence
Gatlin, 143
(Milner
child
v.
is inadmissible.
Moore v.
977];
Dozier,
1045,
1916B
816
L.R.A.
Ga.
S.E.
[85
Jackson, 132
v.
Ga.
110, 112];
128 Ga.
Churchill
90
S.E.
[57
1203, 49 L.R.A.N.S.
692,
1913E
691,
666
Ann.Cas.
S.E.
[64
803]; Long
149
875];
Giroux, 19 Mont.
v.
State
[47
28-29.)
Smith, (Tex.Civ.App.) 162 S.W.
v.
boarding
a Mr.
with
“Petitioner
testified that
Granberg, and,
Mrs.
if
of his
awarded
to be cared for Mrs.
intended to
it to their home
take
Granberg.
mean,
effect,
physical
care
This would
stranger.
to a
of this
would be entrusted
infant
cases
this cannot be
But it has been held in numerous
a child are found to be
parents
done unless the natural
custody.
in the
principle
unfit to have such
This
was restated
very
Roche,
recent ease Roche
eight
999],
joint
girl
age
where
years
of a
control
awarded to
care and
parents,
physical
but the
control
paternal grandparents.
Supreme
awarded to the child’s
*14
quoted
Stever,
166,
6
170
Court
Stever v.
[56
deprive
can
1229],
to the
that ‘before the court
effect
custody
right
give
the mother of
her
her
the
and
minor’s
charge
strangers,
finding
the
the
into
of
there must be a
that
person
custody
of her
mother
an unfit
to have the
child.’
holding
cited,
In
pages
Other cases so
were
128-129. Guardian
cited,
ship
Estate,
503],
Mathews
676 stated,
“As the order in ease hereinbefore awards full' father, pro- of the child and contains no vision for the mother to offspring. even see her There is certainly nothing justifies any depriva- this case that tion. In Bryan, Allison v. Okla.
Am.St.Rep. 988, 30 146], plaintiff, L.R.A.N.S. the mother of an illegitimate legitimized by child which had been its father and was in custody, deprived by had been latter of any right to applied see She granted child. and was an order provided permitted that the child should to be with her at certain times and places. appeal On quoted court from Haley Haley, 44 Ark. as follows: “ privilege ‘The visiting accorded to the mother is a plain dictate humanity, any in the absence of reason to suppose privilege injury would be abused to the boy. There was charges none in this case. The of im- morality against the mother not sustained.. She is shown to be an industrious, hard-working woman, good woman, by all the witnesses, except the But defendant. had it been otherwise permission necessarily would not visit erroneous. regard The courts should the maternal instinct in the veriest trull streets, taking proper walks the care that it do not lead corruption offspring. to the It is strongest and holiest humanity; sentiment freest impurity, hope the last re- from selfishness often demption (Italics ours.) natures.’ for fallen “After reviewing dealing right other cases with the *15 visitation, the court said: “ ‘Prom foregoing practi- it will be seen under cally every and all in parent, conditions the some instances the father and in mother, losing right others the while of custody of children, their every in received at have instance recognition hands of the right court of their of visitation . . . the underlying reason for the rule in each instance was right one accorded parent, was a and that it was in humanity right living accord with and and the best interests of forget the child that it should and be not ’ estranged. Copeland “In 1122], v. 58 327 P. Copeland, Okla. [159 the court said: ‘ ‘ legitimate offspring child was the a lawful mar- ‘. of riage parties and, though between the years, and was of tender the mother may erred, dry up her sin did not the well- springs right part mother her love and forfeit all
677 enjoy visit and offspring. with association of her own declare, recognizes right, Neither does the law but this so so long endangered welfare of the child will not ’ thereby. Bryan, supra, also quoted
“It cited and from Allison v. from Haley Haley, supra, quoted and v. which was therein. petitioner think “We to furnish failed evidence which justified change trial made the order agreed writing As stated, court. hereinbefore dated 15, 1944, March the child should be awarded mother; agreements to the and while such are not binding upon courts, v. nevertheless, said Black Black, 505], 149 generally Cal. 226 P. courts do [86 approve adopt them, parents, because solicitous for the welfare offspring, greatest of their have the interest deter mining which of provide them can best care them. Sargent Sargent, And 931], 106 Cal. right said that ‘Parents have a each contract with other as to offspring, control their and to stipulate away respective parental their rights; and such ’ binding upon contracts are them.
“Petitioner respondent had lived with date of their marriage, 6, 1941, November until its dissolution on 31, 1944, March part of time in the home she now shares with her mother. He must have known when he made his agreement whether Mrs. Munson proper mother, was a fit and agreement and his giving indicates Even that he so believed. his testimony the scope, inadequate fullest we think it was space show that in the so some seven weeks conditions had changed and Mrs. person Munson had become disso- lute character deprived that she should be care of her infant child and same in effect awarded to stranger. Petitioner been free to baby, has visit with the has visited him five six While Mrs. times week. Munson is employed in hospital the diet kitchen of a her hours are from 8 a. p. m., p. m., m. to 1 during and from her absence from her home the child is well cared age. sister-in-law who has a child of her own about the same tending “Also the record contains evidence to show petitioner himself is char- reproach and that his above unnecessary acter best; is not of the it is to recite but same. things We are satisfied for the stated that other reasons above unequal were not case and that this child tender *16 mother; years cannot should in the of its and we agree showing made it for the best interests care affection. deprived this infant its mother’s to be might though define the We Civil Code does not add degree justify under section thereof will fraud which where, marriage, might well be said that the annulment of a here, plaintiff constrained to secure annulment her, marriage because, though of her fact was unknown to living Munson wife married her when another he had divorced, whom conduct constituted was not that his upon, respondent required a fraud under section court, 84, supra, child award the to her.” opinion my
In the order should reversed. 4648. In No. Bank. Feb.
[Crim. 1946.] THE PEOPLE, MITCHELL, BART Appellant, v. Respondent. notes information to get inspired testimony, of the child or whether it, were, perhaps, it tends corroborate matters for the trial objection court. However, to admission of the in evi letter interposed, and, think, dence was under the we circumstances authority should have been sustained. there is While that, eases, state at least criminal evidence otherwise com petent illegally is not inadmissible because secured rights I, invasion the constitutional secured article Constitution, theory section our state on the stated People Mayen, 1383], Cal. 237 24 A.L.R. of the land are Constitution laws not solicitous persons charged to aid with crime their efforts to conceal