Grant

The defendant was found guilty of violating Penal Code section 270 in that he failed to support two children alleged to be his. It was admitted that the children were illegitimate. He appeals from the order granting probation and the order denying a new trial. With but few éxeeptiohs, none of which exist here, an order denying a new trial in a misdemeanor case has not been appealable since Penal Code, section 1466 was amended in 1961. The order granting probation is, however, appealable. (Pen. Code, § 1466, subd. 2(d).).

The ..important question here involved is: Did the court err in instructing the-jury that, “. . . it is only necessary to prove the facts [of paternity] by a preponderance of the evidence”? Appellant claims that in this, as in other criminal cases, the facts must be proved beyond a reasonable doubt. The law is that when the defendant is charged with failing to provide 'for an illegitimate child, the facts must be proved beyond a reasonable doubt. People v. Kovacevich (1937) 19 Cal.App.2d 335 [ 65 P.2d 807 ] ; People v. Crawford (1962) 205 Cal.App.2d Supp. 858 [ 23 Cal.Rptr. 566 ]. The court,.doubtless, relied on Penal Code section 270e which provides in part: “No…