Clarke, Application of

• Decision Date: 05 April 1957
• Docket Number: Cr. 5882
• Citation: 309 P.2d 142,149 Cal.App.2d 802
• Court: California Court of Appeals Court of Appeals
• Parties: Application of Donald L. CLARKE, for a Writ of Habeas Corpus.

Page 142

309 P.2d 142

149 Cal.App.2d 802

Application of Donald L. CLARKE, for a Writ of Habeas Corpus.

Cr. 5882.

District Court of Appeal, Second District, Division 2, California.

April 5, 1957.

Irmas, Rutter & Halper and William A. Rutter, Beverly Hills, for petitioner.

William B. McKesson, Dist. Atty., Jere J. Sullivan and Lewis Watnick, Deputy Dist. Attys., and Walter C. Foster, Deputy City Atty., Los Angeles, for respondent.

RICHARDS, Justice pro tem.

Petitioner was charged and convicted in the municipal court of a violation of section 270 of the Penal Code in failing to furnish, as the father of an unborn illegitimate child, the 'necessary food, clothing, shelter or medical attendance or other remedial care' for said child. The conviction was affirmed by the appellate department of the Superior Court of Los Angeles County although the judgment imposed was reversed with instructions to rearraign the defendant for judgment. People v. Clarke, 146 Cal.App.2d Supp. 904, 304 P.2d 271. Thereafter the petitioner was rearraigned in the municipal court, at which time he and the mother of the child for whose non-support he had been convicted were husband and wife. The court granted probation, one of the conditions of which was that petitioner spend 240 days in the county jail. A subsequent motion for modification of probation having been denied, petitioner now seeks his discharge by habeas corpus. Petitioner attacks the constitutionality of section 270 of the Penal Code as applied to the facts in this case, contending that it is so vague and indefinite as to be violative of the constitutional requirement of due process. That section, omitting non-germane provisions, reads: 'A father of either a legitimate or illegitimate minor child who wilfully omits without lawful excuse to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his child is guilty of a misdemeanor and punishable by imprisonment in the county jail not exceeding two years or by a fine not exceeding one thousand dollars ($1,000), or by both. * * * This statute shall not be construed so as to relieve such father from the criminal liability defined herein for such omission merely because the mother of such child is legally entitled to the custody of such child nor because the mother of such child, or any other person, or organization, voluntarily or involuntarily furnishes such necessary food, clothing, shelter or medical attendance or other remedial care for such child, or undertakes to do so.

'Proof of abandonment or desertion of a by such father, or the omission by such father to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his child is prima facie evidence that such abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is wilful and without lawful excuse.

'* * * A child conceived but not yet born is to be deemed an existing person in so far as this section is concerned.'

The duty of a father to furnish the necessary food, clothing, shelter or medical attendance for his minor child has long been the law and it does not appear to have been attacked for uncertainty as applied to children who have been born. The extension of the statute to an unborn child was by amendment in 1925, adding the last sentence of the statute as above quoted, and the statute as amended and as applied to an unborn child was held not void for uncertainty in People v. Yates, 114 Cal.App.Supp. 782, 298 P. 961, by the appellate department of the Superior Court of Los Angeles County. See Kyne v. Kyne, 38 Cal.App.2d 122, 127, 100 P.2d 806.

It is contended that the act fails to delineate with adequate certainty the scope of a father's duty to an unborn child in that it does not describe the necessaries for an unborn child nor how they may be furnished to it. The manifest reason and purpose of this humane legislation is to place upon the father of a minor child, born or unborn, legitimate or illegitimate, the responsibility of providing the basic needs for the preservation of the life of the child; food, clothing, shelter, and medical care. When the legislative intent has been ascertained, it must be enforced as intended notwithstanding that the derived meaning may be inconsistent with the strict letter of the statute as enacted. People v. Villegas, 110 Cal.App.2d 354, 358, 242 P.2d 657. A statute cannot be held void for uncertainty if any reasonable or practical construction can be given to its language. Pacific Coast Dairy v. Police Court, 214 Cal. 668, 676, 8 P.2d 140, 80 A.L.R. 1217; County of Tulare v. City of Dinuba, 188 Cal. 664, 677, 206 P. 983. 'The complexities of the social problems dealt with by the Legislature require that a practical construction be given to the language employed by the draftsmen of legislation lest their purposes be too easily nullified by over-refined inquiries into the meanings of words.' People v. Deibert, 117 Cal.App.2d 410, 418, 256 P.2d 355, 360. One old enough to father a child may be presumed to know that the way by which the human embryo and fetus is nurtured during gestation is through the intermediary of the mother and that to sustain the life of an unborn child, the mother herself must be sustained with food, clothing and shelter. As to unborn children, the statute contemplates indirect necessities, or those which are to be furnished through the mother. People v. Yates, supra, 114 Cal.App.Supp. at page 786, 298 P. 961. Merely because this biological fact may place a heavier burden on the father of an unborn child furnishes no ground for declaring the statute uncertain. As to the method or means of furnishing the unborn child's necessaries, the statute does not require that they be furnished 'to' the child, but 'for' the child. Detailed plans and specifications of the means whereby the father shall furnish the necessaries for a child are not required to be set forth in the statute and h...