Aрpellant was convicted of a violation of section 270 of the Penal Code, in that he “willfully omitted without lawful excuse to furnish necessary food, clothing, shelter and medical attendance for his three minor childrеn by his divorced wife.”
Many points are made by appellant, but as we are satisfied that the cause must be reversed for a failure of proof as to a vital element of the crime charged, it is probable thаt the other questions will not arise again, and we therefore forego any discussion of them.
It is admitted by the attоrney-general that it should be made to appear that the father has the ability to supply what is needеd or else a conviction is not supported. Indeed, it is apparent that inability without fault is a “lawful excusе”
*461
for the failure to discharge this parental duty. “While it is the duty of a parent to support his children of tender years, yet in order that he be imprisoned for failure to obey an order of the court in connection therewith, it must affirmatively appear that he has the ability to comply with the order of the court.”
(In re McCandless,
In
State
v.
Garrison,
In
State
v.
Bess,
In
Goddard
v.
State,
The showing here was without conflict that the defendant did not have the ability to support his children. This was due in part to business reverses and in part to a disability arising from an injury to his hand. It is true that he was and is a skilled dentist, but he had few patients and was unable to serve those. He could not even pay his rent. His former wife was unable to find any property upon which to levy to satisfy a judgment in her favor. There is no evidence that defendant was willfully idle or that he was prodigal in his expenditures. There is nо just ground for the- inference that his financial embarrassment was the result of artifice or any design to deprivе his children of the attention and support to which they were entitled. Deliberate and fraudulent inability would, of сourse, be considered unavailing as a defense to the charge. We are not, however, at liberty tо infer that appellant was not acting in good faith. True, another marriage and the birth of another child аdded to his burdens, but this consideration involves nothing culpable or even immoral. It rather suggests a reason why care should be exercised in applying the severe penalty of a statute which, as suggested by appеllant, is “intended to prevent destitution and not to produce hardship in or destruction of the home.” In this connеction it is deemed appropriate to quote from the concurring opinion of Mr. Justice Frick in the Bеss case, supra, as follows: “In view of this, it would be a somewhat peculiar administration of the law in question, to say thе least, if it should be held that Mr. Bess should be punished for what he was utterly unable to prevent. Moreover, to imprison him could result only in depriving the little boys of their means of support. Such a result would be more or less tragic for them, to say the least. . . . While the law in question is salutary, it nevertheless is of that character which requires it to be administered with some care so as to not produce more mischief by its enforcement in certain сases than can be prevented thereby. ’ ’
Before concluding, it is not deemed amiss to say that the evidеnce shows that said children have been cared for and all their wants supplied by their grandparents. While we are not called upon to hold, as held by the courts of some jurisdictions, that this constitutes a complеte defense to the *463 charge, yet we may remark that this beneficent circumstance naturally tends to obviate any reluctance to accord to appellant the full benefit'of his impecunious condition.
We think the judgment and order should be reversed, and it is so ordered.
Chipman, P. J., and Hart, J., concurred.