62 Cal.App. 385, Crim. 1099, People v. Wallach

Docket Nº:Crim. 1099
Citation:62 Cal.App. 385, 217 P. 81
Opinion Judge:LANGDON, Judge
Party Name:THE PEOPLE, Respondent, v. LOUIS WALLACH, Appellant
Attorney:A. D. Duncan for Appellant. U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.
Judge Panel:JUDGES: LANGDON, P. J. Nourse, J., and Sturtevant, J., concurred. Nourse, J., and Sturtevant, J., concurred. Nourse, J., and Sturtevant, J., concurred.
Case Date:June 05, 1923
Court:California Court of Appeals
 
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Page 385

62 Cal.App. 385

217 P. 81

THE PEOPLE, Respondent,

v.

LOUIS WALLACH, Appellant

Crim. No. 1099

Court of Appeals of California, First District, Second Division

June 5, 1923

Page 386

A Petition for a Rehearing of this Cause was Denied by the District Court of Appeal on July 3, 1923, and the Following Opinion then Rendered thereon.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Warren V. Tryon, Judge Presiding.

Reversed.

COUNSEL:

A. D. Duncan for Appellant.

U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.

JUDGES: LANGDON, P. J. Nourse, J., and Sturtevant, J., concurred.

OPINION

LANGDON, Judge

Page 387

[217 P. 82] LANGDON, P. J. 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 week. There is, however, conflict in the testimony as to the receipt of this money, but there is no testimony other than that of the defendant as to his ability to support his family during [217 P. 83] this period, and his testimony narrated facts which would establish his inability to do so. About November, 1914, defendant lost his position in Los Angeles because of a fire at his place of employment, and he returned to San Francisco to his family. At that time the family was supported by credit at the grocery-store and a small amount of money which defendant had brought with him from Los Angeles and which he stated had been borrowed. Also, at that time, Mrs. Wallach accepted aid from the Eureka Benevolent Society, an organization for the relief of needy persons of the Jewish race. Defendant was again unable to obtain employment in San Francisco, because, as he stated, it was a " dull time of year" in his business of egg candler. Accordingly, after several weeks, he borrowed some money and returned to Los Angeles, and upon being unable to find employment there, borrowed more money and went to Chicago. There he secured irregular employment for two or

Page 388

three days a week, and the first ten dollars he could accumulate, over and above his actual living expenses, he sent to his family. The wife and daughter admit receiving this, which was sent about three weeks after defendant left Los Angeles. The defendant testified that he had sent a second remittance of ten dollars to his family, but this is denied by the wife. However, she did acknowledge receipt of the first remittance, and shortly thereafter, in reply to a suggestion by the defendant that he would like to return to San Francisco as he had become very ill, she wrote to him that there was nothing to do in San Francisco and suggested that, as she was being provided for, defendant remain and do the best he could in Chicago. This letter was addressed to the defendant in care of the Egg Inspectors' Union of Chicago. Mrs. Wallach never made any attempt to communicate with her husband after that letter was written, and he testified that mail would always have reached him if entrusted to the office of his union at Chicago, an address which his wife knew and to which she had previously written.

On the other hand, Mrs. Wallach moved very frequently about this time. According to her own testimony, she was living on Webster Street and O'Farrell in June, 1914, and moved from there after four months and took up her residence on Golden Gate Avenue, from where she moved to a house on Octavia Street, where she lived three months, after which time she moved to Webster Street, where she remained four months, and then moved again to Webster and Pine. She remained there about two years and then moved to Bush and Fillmore. The last letter she received from her husband was delivered to her at the Golden Gate Avenue address. Defendant testified that he wrote at frequent intervals to the Golden Gate Avenue address, the only address that he knew, and that the letters were returned to him by the postal authorities with the notation that the house was vacant or that the addressee could not be found. Defendant testified that some of these letters contained money.

The defendant worked intermittently in Chicago for three or four years, during which time he testified he was seriously ill for a part of the time and ailing most of the time, and that he incurred hospital and doctor's bills which consumed all his earnings. He testified that in August, 1916, he journeyed to Detroit, Michigan, to ask his niece to write

Page 389

to his wife at the last address he knew, thinking that perhaps the wife would reply to the niece even though she were unwilling to write to him. The envelope addressed to the wife at 857 Golden Gate Avenue, written by the niece and mailed at Detroit, Michigan, August 28, 1915, was admitted in evidence. It had been returned to the sender by the postal authorities marked " unclaimed," etc. Defendant testified that many of the other letters written to his wife which had been returned to him were handed by him before his arrest to an attorney in New York City, and he asked permission to take the deposition of said attorney to prove the contents of these letters and the notations of the postal authorities upon their envelopes. This permission was denied and its refusal is assigned by the appellant as prejudicial error and will be discussed hereinafter.

Defendant testified that in 1917 he was employed by a Chicago firm as a buyer at Dallas, Texas; that while in Texas he again wrote to his family, addressing one letter to the old address at Golden Gate Avenue and another to the United Hebrew Society, 436 O'Farrell Street. In 1918 the defendant left Chicago and obtained a position with a firm in Newark, N. J. He now ceased his efforts to locate his...

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