202 P. 348 | Cal. Ct. App. | 1921
In this case the defendant is charged with having failed to provide for his minor child under section
The first ground relied upon for reversal is alibi and certain alleged erroneous instructions given by the court concerning the date upon which appellant maintains the prosecution must prove that the child was conceived.
[1] The prosecutrix, Marie L. Mooney, testified that she had sexual intercourse with the defendant in San Diego on the twentieth day of January, 1920, between the hours of 2 and 3 in the morning; that conception took place as a result of which the child was born. The defendant testified that at the time mentioned he was on the high seas and not in San Diego. Evidence both oral and documentary was introduced which corroborated the defendant in this regard. It must be clear that the record thus presents a direct and irreconcilable conflict in the evidence. Apparently the jury did not believe the testimony offered in support of the defendant's alibi. They had the right to accept the statements of the prosecutrix as true. Their verdict shows that they did this and an appellate court cannot review their decision *471
upon the credit to be given the witnesses or the weight of the testimony. (People v. Hoosier,
[2] Appellant insists that the jury would not have rendered a verdict of guilty had it not been for certain alleged erroneous instructions given it by the court. We will consider these instructions, the first of which is as follows: "The court instructs you that it is wholly immaterial on what day or night the offense charged in the information was committed, provided you believe from the evidence it was committed and that the same was committed within three years prior to the filing of the information in this case." This is but a statement of the law as provided in section
[3] But it is said that the court gave another instruction on the same subject which informed the jury that the date of the act of sexual intercourse need not be proved to have been even within the period of three years before filing of the information. Assuming that the instruction could be so construed, it would be a correct statement of the law. In cases where the child for whose criminal neglect the parent is being prosecuted is more than three years old — for example, ten years — of course, sexual relation must have occurred more than three years prior to the filing of the information.
[4] Appellant next contends that it is only when a child becomes dependent upon the charity of strangers or is likely to be a public charge that the parent's neglect is criminal under section
[5] Finally it is insisted that no evidence was introduced sufficient to prove that the defendant had the ability to provide for his child. The evidence of the defendant himself, as well as of the people, showed that during the period in question defendant was able-bodied and in the employ of the United States government in the capacity of chief machinist's mate. This evidence was sufficient from which the jury might properly draw the inference that the defendant possessed the ability to maintain his offspring. Upon such an affirmative showing and a total absence of evidence to meet it, this court cannot say that the verdict was not supported by the evidence in so far as this element of the offense charged is concerned. (People v. Turner,
In the case at bar, the jury's verdict is sufficiently supported upon every material element of the charge. We find no error in the court's instructions.
The judgment is affirmed.
Finlayson, P. J., and Works, J., concurred. *474