In re Carpenter

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[Crim. No. 1970. First Appellate District, Division One. July 8, 1937.]

In the Matter of the Application of CHARLES T. CARPENTER for a Writ of Habeas Corpus on Behalf of MRS. PEARL KENNEDY CARPENTER.

COUNSEL

George D. Collins, Jr., for Petitioner.

Edward M. Leonard and Raymond D. Williamson for Respondent.

OPINION

The Court.

A petition for a writ of habeas corpus was filed on behalf of Pearl K. Carpenter (who will be hereinafter referred to as the petitioner.) She was committed for contempt by the Superior Court of the City and County of San Francisco for failing to obey an order directing her to receive into her home and care for her minor children.

[1] The admitted facts are that petitioner was formerly the wife of John Kennedy, and the children are the issue of that marriage. She obtained a divorce from Kennedy and subsequently married Carpenter. She had the custody of the children until her second marriage, whereupon they were taken by Kennedy, who later delivered them to the officers [21 Cal. App. 2d 659] of the juvenile court of the above city and county, in whose custody they now remain as wards of the court. Petitioner lives in a house provided by her present husband, where he refuses to permit the children to reside, and it is not contended that she has the means of caring for them elsewhere.

Carpenter is not bound to support the children (Civ. Code, sec. 209), and petitioner, not having the ability to do so without his assistance, cannot be imprisoned for her failure to obey an order that she furnish such support. (In re McCandless, 17 Cal. App. 222 [119 P. 199].)

The petitioner is discharged.