Wallach

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…

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 a legal 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…