158 P. 501 | Cal. Ct. App. | 1916
Appeal by the defendant from the judgment, and from an order denying his motion for a new trial.
Defendant was convicted of the offense described in section
In January, 1915, in an action of divorce in the superior court of Los Angeles County wherein this defendant was defendant, and the mother of said minor children was plaintiff, the court denied the plaintiff's petition for a divorce, and decreed that the defendant as cross-complainant was entitled to a divorce from the plaintiff. The court having further found that both parties were fit to have custody of the children, awarded the custody of them to the mother, and after making certain provisions concerning the property interests of the parties, ordered that the defendant pay $6 a week for the support of said minor children. Counsel for appellant, after directing our attention to these facts, contended that under the evidence in this case it appears that the order for payment of money by him was made by his consent upon a stipulation, and that to imprison him for failure to make payments in accordance with that decree is to imprison him for debt, which he contends would be a violation of defendant's constitutional rights.
The record clearly establishes that the decree and order in question derived their force entirely from the power of the court, and not from any contract or consent on the part of defendant. In an action for divorce the court has authority to make such order for the custody, care, education, maintenance, and support of the minor children as may seem necessary or proper. (Civ. Code, sec. 138) The fact that during the period of time covered by the information in this case the children were not in the custody of their father, made it necessary for the prosecution to show that his obligation to contribute toward the support of the children was not suspended, as he might have contended that it was under *465
section
We are satisfied that there is no ground for the contention that punishment of the defendant under section
It is further contended that the evidence fails to show a willful omission by the defendant to make the necessary provision for the support of his children, and fails to show that they were not in fact sufficiently supported by their mother. Since there was evidence tending to support the accusation as to these matters, we find no sufficient reason for setting aside the verdict of the jury.
The judgment and order are affirmed.
James, J., and Shaw, J., concurred. *466