People v. Wallach , 62 Cal. App. 385 ( 1923 )

The defendant appeals from a judgment of conviction of a felony, to wit, willful failure, without lawful excuse, to provide for the support of a minor child. (Sec. 270, Pen. Code.)

The indictment charges the offense as having been committed on the twenty-seventh day of June, 1914, at which date the minor was of the age of five years, and that defendant has absented himself from the state since said date.

The testimony was to the effect that at the time alleged in the indictment the defendant was working in San Francisco and receiving a salary of eighteen dollars a week and supporting his wife and children. In July, 1914, the defendant lost his position because of the destruction by fire of the place of business of the company by which he was employed. It was difficult for him to secure work in San Francisco and he sold some of his clothing and went to Los Angeles on a freight boat. This was with the consent of his wife. For a time his family secured their food upon credit at the grocery-store. Defendant testified that he sent small amounts of money to his family during the short time he remained in Los Angeles, although he was able at the time to secure work for only a few days a week. There is, however, conflict in the testimony as to the receipt of this money, but there is no testimony other than that of the defendant as to his ability to support his family during this period, and his testimony narrated facts which would establish his inability to do so. About November, 1914, defendant lost his position in Los Angeles because of a fire at his place of employment, and he returned to San Francisco to his family. At that time the family was supported by credit at the grocery-store and a small amount of money which defendant had brought with him from Los Angeles and which he stated had been borrowed. Also, at that time, Mrs. Wallach accepted aid from the Eureka Benevolent Society, an organization for the relief of needy persons of the Jewish race. Defendant was again unable to obtain employment in San Francisco, because, as he stated, it was a "dull time of year" in his business of egg candler. Accordingly, after several weeks, he borrowed some money and returned to Los Angeles, and upon being unable to find employment there, borrowed more money and went to Chicago. There he secured irregular employment for two or three days a week, and the first ten dollars he could accumulate, over and above his actual living expenses, he sent to his family. The wife and daughter admit receiving this, which was sent about three weeks after defendant left Los Angeles. The defendant testified that he had sent a second remittance of ten dollars to his family, but this is denied by the wife. However, she did acknowledge receipt of the first remittance, and shortly thereafter, in reply to a suggestion by the defendant that he would like to return to San Francisco as he had become very ill, she wrote to him that there was nothing to do in San Francisco and suggested that, as she was being provided for, defendant remain and do the best he could in Chicago. This letter was addressed to the defendant in care of the Egg Inspectors' Union of Chicago. Mrs. Wallach never made any attempt to communicate with her husband after that letter was written, and he testified that mail would always have reached him if entrusted to the office of his union at Chicago, an address which his wife knew and to which she had previously written.

On the other hand, Mrs. Wallach moved very frequently about this time. According to her own testimony, she was living on Webster Street and O'Farrell in June, 1914, and moved from there after four months and took up her residence on Golden Gate Avenue, from where she moved to a house on Octavia Street, where she lived three months, after which time she moved to Webster Street, where she remained four months, and then moved again to Webster and Pine. She remained there about two years and then moved to Bush and Fillmore. The last letter she received from her husband was delivered to her at the Golden Gate Avenue address. Defendant testified that he wrote at frequent intervals to the Golden Gate Avenue address, the only address that he knew, and that the letters were returned to him by the postal authorities with the notation that the house was vacant or that the addressee could not be found. Defendant testified that some of these letters contained money.

The defendant worked intermittently in Chicago for three or four years, during which time he testified he was seriously ill for a part of the time and ailing most of the time, and that he incurred hospital and doctor's bills which consumed all his earnings. He testified that in August, 1916, he journeyed to Detroit, Michigan, to ask his niece to write to his wife at the last address he knew, thinking that perhaps the wife would reply to the niece even though she were unwilling to write to him. The envelope addressed to the wife at 857 Golden Gate Avenue, written by the niece and mailed at Detroit, Michigan, August 28, 1915, was admitted in evidence. It had been returned to the sender by the postal authorities marked "unclaimed," etc. Defendant testified that many of the other letters written to his wife which had been returned to him were handed by him before his arrest to an attorney in New York City, and he asked permission to take the deposition of said attorney to prove the contents of these letters and the notations of the postal authorities upon their envelopes. This permission was denied and its refusal is assigned by the appellant as prejudicial error and will be discussed hereinafter.

Defendant testified that in 1917 he was employed by a Chicago firm as a buyer at Dallas, Texas; that while in Texas he again wrote to his family, addressing one letter to the old address at Golden Gate Avenue and another to the United Hebrew Society, 436 O'Farrell Street. In 1918 the defendant left Chicago and obtained a position with a firm in Newark, N.J. He now ceased his efforts to locate his family. He testified that about this time, while he was earning fifty dollars a week, he was ill much of the time and did not work steadily and spent a large amount of money for doctor bills, etc. Later he went to New York City and engaged in numerous enterprises, with varying success, until finally, in September or October, 1921, we find him with a "Dairy Store" in New York City, retailing eggs, butter, fresh roasted coffee, etc., and making a profit of from $150 to $200 a week. Shortly after establishing this business (in October, 1921) defendant retained an attorney, one Fallick, and asked him to locate his family in San Francisco. It was through a communication sent by this attorney to the police department of San Francisco, which was referred by said department to the Eureka Benevolent Society, the benefactor of the family, that knowledge of the whereabouts of defendant was obtained. The Eureka Benevolent Society, through its agents in New York, made an investigation and caused the arrest and return of defendant to San Francisco under indictment.

At the time of his arrest defendant offered to send $1,000 for the transportation of his family to New York and to support them there, or to pay them a substantial amount weekly for their support in San Francisco if they desired to remain here. The Eureka Benevolent Society, which conducted the negotiations, telegraphed to its agent in New York City that defendant's family declined to go to New York and declined the offer of future support unless the defendant would either pay in cash or provide a bond to secure the future repayment of over $3,000 expended by the Eureka Benevolent Society and the city and county of San Francisco for the relief of his family during the period of defendant's absence. This the defendant was unable to do, and his prosecution followed.

[1] The defendant insisted at the trial that the prosecution be limited in its proof to some specific time within which to prove the commission of the offense, but the trial court ruled that proof of nonsupport and of defendant's ability to provide for his family might range over the entire period between the date mentioned in the indictment, to wit, June, 1914, and the date of the arrest, November, 1921. This ruling is assigned as error under the authority of People v. Williams, 133 Cal. 168 [65 P. 323]. In that case the defendant was tried for rape, and it was held to be error to admit evidence of many separate offenses, extending over a considerable period of time. There can be no doubt about the correctness of this ruling, but that case is clearly differentiable from the present one. A prosecution under section 270 of the Penal Code is, necessarily, for a continuing offense. Failure to provide upon one day or another day is not the evil aimed at by the statute. It is the continuing offense, the failure to provide for a substantial length of time, without legal excuse, which constitutes this offense. The instructions and ruling of the trial court that this was a continuing offense were correct. (People v. Stanley, 33 Cal.App. 624, 626 [166 P. 596].)

However, it seems to us that the evidence herein narrated as to the earnings and conduct of the defendant during the period in question offered a lawful excuse within the meaning of the statute. It might well be said that a devoted husband and father would have made more persistent efforts to locate his family, and failing in that would have returned to seek them, but we cannot hold that to establish a "lawful excuse" defendant is compelled to show more than a reasonable effort to locate those dependent upon him. Some duty was upon the wife to communicate with her husband and inform him of the whereabouts of herself and her children and of their needs. That general subject was discussed in the case ofPeople v. Meads, 28 Cal.App. 140 [151 P. 552], in which it was said: "When the wife and child left under the circumstances indicated, the defendant was justified in assuming that the mother intended to support and take care of the child and it was not his duty to hunt her up and tender assistance. He could well wait until informed that assistance was needed and would be accepted." True, the present case does not present the element of the departure of the wife and child from the husband, but the evidence shows that the husband left with the knowledge and consent of the wife, for a legitimate purpose, to wit, to seek a field where he could better earn a living for himself and family, and when the wife wrote to him not to return to San Francisco, and subsequently moved from place to place every few months, it was her duty to inform the defendant of her whereabouts and not to expect him to employ the services of the police department to find her in order to offer her support. The evidence also shows that during the period when the defendant knew the whereabouts of his family he was without work and ill and had no ability to support them. Such inability is a legal excuse. (People v. Forester, 29 Cal.App. 460 [155 P. 1022].)

[2] But quite apart from the question of whether or not the defendant has shown a legal excuse, there seems to have been no justification for the refusal to allow the defendant to secure the deposition of the attorney, Fallick, whom he had employed in New York to find his family. Defendant stated that he had given to Fallick the conclusive evidence of his numerous efforts to find his family, that is, the returned letters which he addressed to his wife from various parts of the country over a period of years, and which were sent to her last known address. Defendant was a man of little education and highly excitable, as shown by his outbursts during the trial, and he testified that when he was arrested in New York at the home of his attorney, after he had engaged his services to aid him in finding and providing for his family, he conceived the idea that he had been deceived or betrayed by Fallick and threatened to have him disbarred. He later attempted to chastise Fallick in a public park. The entire situation revealed strained relations between Fallick and defendant, and defendant asserted that Fallick had refused to return his letters. These letters would have been most important and convincing evidence. Defendant was entitled to have them presented to the jury and he was entitled to secure their production by the only means open, which was to take the deposition of Fallick. The denial of this right is, in itself, prejudicial error and demands a reversal of the judgment.

Under the views just expressed, it is unnecessary for us to consider the point made by the defendant that under the provisions of section 196 of the Civil Code he was released from an obligation to support his minor child because of an order of the juvenile court depriving him of its custody and giving its sole custody to the mother; nor is it necessary to discuss the other assignments of error.

The judgment is reversed.

Nourse, J., and Sturtevant, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on July 3, 1923, and the following opinion then rendered thereon: