People v. Nevarez

Crim. A. No. 21. Aug. 2, 1954.]

THE PEOPLE, Respondent, v. ALBERTO E. NEVAREZ, Appellant.

COUNSEL

Alberto E. Nevarez, in pro. per., for Appellant.

Lowell E. Lathrop, District Attorney (San Bernardino), for Respondent.

OPINION

MITCHELL, J.

Appellant was convicted of the offense of failure to provide for his minor child. From this judgment he appeals.

[1] According to the statement on appeal the People introduced testimony which established the fact that appellant had failed to support his minor son. Hence a prima facie case was made.

Appellant suggests that because of the "presumption of innocence" there was a burden upon the respondent to prove that he had the ability to so provide and to prove that his neglect was wilful. [127 Cal. App. 2d Supp. 835]

The statute under which he was convicted provides that proof of the omission by the father to furnish necessary food and clothing for his child is prima facie evidence that such neglect was wilful and without lawful excuse.

As soon as it is shown that the father has failed to provide necessary food, etc. for his child, the statute creates a valid presumption that the neglect was wilful and without legal excuse (People v. Yates, 114 Cal. App. Supp. 782 [298 P. 961] and People v. Norton, 47 Cal. App. 2d 139 [117 P.2d 402]).

The record on appeal indicates that appellant introduced a letter showing that he was rated as 10 per cent disabled. He also testified that he had applied for employment at one place.

The trial court was not convinced that these facts relieved the appellant of his legal obligation to his child.

This conclusion was adequately supported and justified.

The judgment is affirmed.

Coughlin, P. J., and Hilliard, J., concurred.