Turner

I concur in the order upon the second ground discussed in the opinion, considered in connection with the rule of decision on appeal in cases where appellate jurisdiction is conferred upon the district courts of appeal by the constitution. (Const., art. VI, sec. 4; People v. Davis, 147 Cal. 346 ,. [ 81 Pac. 718 ]; Matter of Zany, 164 Cal. 724 , [ 130 Pac. 710 ]; Burke v. Maze, 10 Cal. App. 206, 211 , [ 101 Pac. 438, 440 ]; People v. Vaughn, 25 Cal. App. 736 , [ 147 Pac. 116, 117 ].) I thus qualify my concurrence because of the apprehension that from the extended reference in the opinion to the first point, and the failure to cite the many authorities which hold the contrary view, the conclusion may be drawn that by denying a rehearing this court thereby approves what is said in that regard.

The defendant was charged by information with having violated the provisions of section 270a of the Penal Code. He was tried and convicted, and this appeal is from the judgment of conviction and from an order denying his motion for a new trial.

The section reads as follows: “Every husband having sufficient ability to provide for his wife’s support, or who is able to earn the means of such wife’s support, who willfully abandons and leaves his wife in a destitute condition, or who refuses or neglects to provide such wife with necessary food, clothing, shelter or medical attendance, unless by her misconduct he was justified in abandoning her, is punishable, etc. . . .”

The facts briefly are as follows: On January 8, 1914, the defendant was arrested upon a charge of rape alleged to have been committed by him upon the prosecuting witness in this ease, who is- now his wife, Blanche Turner. At that time she was pregnant, and notwithstanding that the defendant stoutly disclaimed responsibility for her condition, he, on the advice of attorneys whom he consulted at that time, and of the justice of the peace before whom the charge was pending, consented to marry the prosecutrix, the…