In the above-entitled matter the respondent has filed a petition for a rehearing, after decision by this court reversing the judgment against the defendant. The earnestness with which the petition is urged, as well as the important question of general public welfare involved in the facts of this case, make it desirable that some reply be made to the points urged in support of the petition for a rehearing.
[3] The opinion heretofore filed herein reviewed the facts disclosed by the evidence and stated that such facts, showing a reasonable effort by defendant over a period of several years to locate his family, without success, would seem to offer alegal excuse for his failure to provide for his minor child. Although the decision was not reached upon that ground, the respondent has taken issue with this *Page 393 portion of the opinion and urges that section 270e of the Penal Code provides that omission to furnish necessary food, clothing, etc., for a child is prima facie evidence that such nonsupport or omission to furnish necessary food, etc., is willful, and this prima facie proof creates a conflict with the testimony of the defendant, which conflict was resolved by the jury. The section of the Penal Code under which defendant was prosecuted (section 270) provides: "A parent of . . . a minor child who willfully omits, without lawful excuse to furnish necessary food, etc. . . ." To say that the willfulness of the act is inferred from evidence of failure to provide does not touch the question discussed by the opinion in this case, which is that, regardless of the fact that defendant's willful failure to provide may have been shown, the evidence discloses facts which, under the decisions of this state, might constitute a lawful excuse. The prosecution must prove not only that there was a willful failure to provide, but that there was no lawful excuse for the omission. (People v. Smith,38 Cal.App. 176 [175 P. 696].) This latter element is an important part of the statute. It is not the purpose of the statute to punish a father for failure to perform his duty as such, but to secure to minor children necessary food, clothing, and shelter. (People v. Clarke, 51 Cal.App. 473 [201 P. 465].)
It was because it appeared to us, for the reasons just stated, that section 270e of the Penal Code was not applicable to the questions presented in this case, that said section was not discussed in the opinion.
Respondent complains that many of the facts recited in the opinion are taken from the testimony of the defendant, This was because that testimony, in our opinion, stands uncontradicted in the record and must be given its full value. As we have stated, respondent urges that the prima facie case made by section 270e of the Penal Code is sufficient to raise a conflict with defendant's testimony and justify the verdict, but, as we have just pointed out, section 270e of the Penal Code has no effect in providing proof that defendant's failure to provide for his child was without lawful excuse and it was to this point that the defense was directed.
Respondent also asserts that a conflict exists in the evidence because of circumstances from which the jury would be justified in inferring facts contrary to the testimony in *Page 394 the record. The first circumstance relied upon is that the defendant failed to provide for his family for seven years. We fail to see how this conflicts with his testimony regarding his repeated efforts to communicate with his family. It does not raise a conflict in the testimony that defendant wrote to his wife at frequent intervals for several years, sending money in some of the letters, and that these letters were addressed to her last-known address in San Francisco and were returned by the postal authorities; that a letter written by a relative to defendant's wife met the same fate; that defendant, finally, after he had succeeded in securing a regular income, engaged an attorney to locate his family; that it was through the inquiries of this attorney addressed to the police department of San Francisco that defendant was located and arrested. The other testimony relied upon by respondent to create a conflict goes to the question of defendant's ability to support his child. We will concede that the testimony shows his ability to support his child for a large part of the time that he omitted to do so. This the defendant did not deny; his own testimony establishes it. His lawful excuse was that he had made a reasonable effort to locate his wife and had failed to do so; that she never communicated with him during the entire period of his absence, although mail would always have reached him at an address which she knew and to which she had last written; that she moved about frequently and made no arrangements for forwarding her mail or for notifying the defendant of the whereabouts of herself and her family.
Respondent urges that the jury did not believe the defendant's story of his efforts to find his family. The doubt in the minds of a jury of the only testimony in the record upon a given subject cannot furnish a conflict in that testimony. The province of the jury is to decide a case in accordance with the evidence.
Respondent points out various means by which the defendant might have located his family. It is suggested that defendant might have written the police department or public officials of the Eureka Benevolent Society, which organization he knew had assisted his family before he left San Francisco. Assuredly, he might have and should have done any and all of these things, but he stated that he did not think of them. When an attorney was employed by *Page 395 defendant to locate his family, the attorney thought of one of these methods and located the family through the aid of the police department, which in turn asked the co-operation of the Eureka Benevolent Society. We think the defendant might well have done even more than the things suggested by the respondent. He might well have returned to San Francisco to search for his family. The decision in this case indicates no sympathy on the part of this court with the general conduct of the defendant toward his family, but, as stated in the opinion, the law does not exact of defendant the diligence that would be employed by the most devoted husband and father. It would be impracticable to apply such a standard in criminal prosecutions under section 270 of the Penal Code. The law can only demand of the defendant reasonable diligence in locating his family and some duty is also placed upon the wife to keep the defendant informed of her whereabouts, especially when she moves about frequently, as was done in the present case. Some duty is also upon the wife to inform the husband of the need for support for the minor child, especially in view of the circumstances of the present case, where the wife testified that she had worked during the entire time of her marriage except when she was ill or had a very young child. Under the law it was as much her duty to support the minor child as it was his duty, if she were able to do so, and we think she should be held to some duty not only to notify the defendant of her whereabouts, but to notify him of her financial needs. (People v. Meads, 28 Cal.App. 140 [151 P. 552].)
We are not insensible to respondent's argument that the statute under consideration should be liberally construed to effectuate its purpose and we realize the social problem involved in cases of this character and the burden placed upon the state and upon such admirable institutions as the Eureka Benevolent Society, which cared for defendant's family during several years of his absence. However, we are also aware that section 270 of the Penal Code might be used as an instrument of oppression and abuse in many conceivable cases unless it be construed by the courts with a view to protecting substantial rights of defendants charged thereunder. The decisions of this state show a wise policy of protection against such possible abuses. In the case of *Page 396 People v. Forester, 29 Cal.App. 462 [155 P. 1023], the court, in considering the section of the Penal Code we are discussing, quotes with approval the following language from another jurisdiction: "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 cases than can be prevented thereby."
In the present case, as recited in the opinion, the defendant voluntarily engaged an attorney to locate his family and it was through the communication of this attorney to the police department in San Francisco that the Eureka Benevolent Society learned of defendant's residence in New York. It immediately telegraphed its representative in New York to investigate and upon such investigation it was learned that the defendant had a dairy store in New York and was making a profit of about $150 a week from this source. He had only been in business for a few weeks at this time and he offered to send $1,000 to San Francisco for the transportation of his family to New York and to support them either in New York or in San Francisco, as they desired. He offered to transfer his interest in his store to his wife as security for the performance of his obligations. This seems from the record to have been all he could possibly do. The Eureka Benevolent Society, however, declined this offer unless the defendant would either pay back something over $3,000 expended by it and the city and county of San Francisco in the support of his family, or give a bond to pay this amount back in installments. The defendant was unable to do this and his arrest and prosecution followed. There is no question about the defendant's moral and legal obligation to repay the money paid out for the benefit of his family, but we fail to recognize any responsibility to do so to avoid a criminal prosecution. With all due respect to the generosity and good work of the Eureka Benevolent Society, we do not think it is in the interest of public policy that the statute be stretched and distorted against the defendant so that he may be forced to repay the money which the society expended upon his family during his absence.
The foregoing lengthy discussion upon the evidence is indulged in merely in deference to the earnestness of the *Page 397 petition for rehearing. It is not really vitally connected with the decision upon this appeal. The opinion suggested that the evidence probably showed a lawful excuse on the part of the defendant for failing to provide for his child, but did not place the decision upon that ground. It was held that the trial court committed prejudicial error in refusing to the defendant permission to take a deposition in New York. The facts with relation to said deposition are set out in the opinion and will not be discussed herein. The answer of the respondent in its petition for rehearing is that section 1354 of the Penal Code, under authority of which leave to take the deposition was requested, is discretionary and requires the court to be satisfied of the truth of the facts stated. It is sufficient to say that discretion thus vested is never an arbitrary discretion and that in the present case the facts appearing in defendant's affidavit were uncontradicted. The court, therefore, was not at liberty to disregard them. In the case ofPeople v. Lundquist, 84 Cal. 26 [24 P. 154], the code section under consideration here was discussed. It was said: "The evidence sought to be elicited was material and important to the defense interposed by the defendant. The showing made contained all that the statute requires and the reason for not having procured the order and the evidence before was sufficient." In the present case, as we have stated, defendant's affidavit supporting his motion appears in the record uncontradicted. The evidence sought to be procured was material and very important. Respondent contends that it was cumulative. It was the most convincing evidence of the facts relied upon by defendant to constitute a lawful excuse and in its absence defendant was forced to offer exceedingly weak evidence of the same facts, and because he did offer what evidence he could on the subject should not militate against his rights when it is apparent that he has been prejudiced by the denial of the privilege of taking the deposition in New York. The defendant, having failed to obtain permission to secure the more convincing evidence of his efforts to locate his family, i. e., the letters returned to him by the postal authorities with the statement that the addressee could not be found, testified on the witness-stand to their existence. There can be no question about the fact that he was prejudiced by being forced to rely upon this *Page 398 weaker evidence of so important a fact in his defense. Naturally, he could not recall the details of the letters, their dates or contents and his testimony was without much force because of these circumstances. On the other hand, the evidence of the letters themselves, with the markings of the postal authorities, would have been most convincing proof of his defense of a lawful excuse. Under these circumstances the ruling of the trial court was prejudicial error.
The petition for a rehearing is denied.
Nourse, J., and Sturtevant, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 3, 1923, and the following opinion then rendered thereon:
THE COURT. — [4] In denying the application for a transfer to this court, we deem it proper to say that we agree with the district court of appeal in reversing the judgment of the lower court because the defendant was deprived of the opportunity of fully presenting his defense, namely, that he endeavored to get in communication with his wife and child and had sent his wife money. This evidence would tend to show that the failure of the defendant to support his child was not willful, and it was for the jury to say from all the evidence whether or not that defense had been so far established as to raise a reasonable doubt as to whether or not the defendant had willfully failed to provide for his child. The opinion of the district court of appeal discusses the proper interpretation of sections 270 and270e of the Penal Code. [5] It is not necessary to consider the proper interpretation of the phrase "without lawful excuse" contained in section 270 of the Penal Code, for the reason that the defense interposed in this case was, in effect, that the failure of the defendant to provide for his child was not a willful one. It is therefore unnecessary to determine the exact meaning of the phrase "without lawful excuse." [6] Where the legal obligation to support exists and the defense of the father is his inability to furnish such support, either because of his inability to communicate with his child or because of his lack of means, section 270e applies, *Page 399 and "proof of . . . the omission to furnish necessary food, clothing, shelter or of medical attendance for a child or children is prima facie evidence that such omission to furnish necessary food, clothing, shelter or medical attendance is willful."
In determining the proper interpretation of section 270 it is evident that the phrase "without lawful excuse" was intended to cover other cases than omissions to provide which were not willful.
The application for transfer is denied.