Distefano v. Com., 4970
| Decision Date | 22 June 1959 |
| Docket Number | No. 4970,4970 |
| Citation | 201 Va. 23,109 S.E.2d 497 |
| Parties | ANTHONY F. DISTEFANO v. COMMONWEALTH OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
Leslie M. Mullins (Fred B. Greear; Greear, Bowen, Mullins & Winston, on brief), for the plaintiff in error.
Thomas M. Miller, Assistant Attorney General; A. S. Harrison, Jr., Attorney General, for the Commonwealth; submitted on brief.
This proceeding was begun in the Juvenile and Domestic Relations Court of the County of Wise, upon a complaint filed by Lillian Distefano against Anthony F. Distefano. The complaint alleged that the defendant had unlawfully refused and failed to provide for the support of the complaint, his wife, and two children under the age of 18 years, 'acknowledged as his own.' Virginia Code, 1950, § 20-61. After a hearing, the Judge of the Juvenile and Domestic Relations Court found the defendant guilty, placed him on probation, and entered an order directing him to make certain payments for the maintenance and support of the children.
The defendant duly perfected an appeal to the Circuit Court of Wise County. The evidence there presented was not in material conflict.
The prosecuting witness, who called herself Lillian Distefano, was born Lillian Baber. She married Atler Stanley in 1944, and Stanley was granted a decree of divorce on February 25, 1952.
Anthony F. Distefano, the defendant, is a doctor of medicine, a married man, and is, and has been, engaged in the practice of medicine. He was separated from his wife who lived in Pennsylvania.
Mrs. Stanley testified that in 1947, she consulted the defendant at his office in Trammel, Virginia, for medical treatment; that shortly thereafter they began having sexual relations which continued from 1947 to 1956, inclusive; and that out of those relations two children were born, one, a girl on February 14, 1949, given the name Frances Distefano, and the second, a boy, born March 3, 1951, named Anthony F. Distefano, III. The defendant arranged for the medical and hospital care of the mother and children at childbirth, and was listed on the birth certificates of the children as their father.
The evidence is clear and overwhelming that Mrs. Stanley and the defendant lived together as man and wife at several places, including St. Paul, Virginia, under the names of Dr. and Mrs. A. F. Distefano. Defendant introduced the woman as his wife, and the boy and girl as his children to a great many people, including the Chief of Police of St. Paul. After six or seven years of illicit cohabitation, Mrs. Stanley expressed the desire that the defendant marry her. When he refused to do so, because he was already married and had been unable to obtain a divorce, she left the apartment in which they had been living together. She then began an amorous affair with another man and her letters to that man portray a mad infatuation for him.
Mrs. Stanley testified that she assisted the defendant in getting 'the figures when he was fixing out his income tax returns for the years 1949-1956, inclusive. ' Over the objection of the defendant and despite his claim that the tax returns constituted the best evidence, she was allowed to testify that Distefano listed the two children, Frances and Anthony F. as his daughter and son, on both State and Federal returns; that on the Virginia returns he listed her as his wife; and that he listed his real wife's name on the Federal returns, and his three children by that wife on all of his returns.
No original returns or copies of them were placed in evidence. There was no evidence that they were unavailable, or were made voluntarily, or under oath. The Commonwealth Attorney said to the court, 'I am going to introduce them. ' Mrs. Stanley, when asked if she had a copy of the returns, replied: 'No, but I could get them very easily.'
There were numerous quarrels between Mrs. Stanley and Distefano about financial matters and their relation to each other. She took her two children and went to her mother's home in Pennsylvania. While there she learned that the defendant had recently been divorced from his wife, so she returned to St. Paul. She then found that Distefano planned to marry someone else. She demanded support for herself and the two children.
On April 16, 1956, defendant gave Mrs. Stanley a letter in which he agreed to pay her $200 a month 'for the upkeep of her two children, Frances and Anthony Distefano, until their eighteenth birthdays, respectively, or until Mrs. Lillian Distefano again marries. ' (Italics added.) This agreement, we are told, he did not keep. Thereupon she caused this proceeding to be instituted.
It is not contended by the Commonwealth that the defendant ever admitted that he was the father of the children before any court. The Commonwealth argues that the defendant 'voluntarily admitted paternity in writing, under oath,' Code of Virginia, 1958 Cum. Supp. § 20-61.1, in signing his Federal and State income tax returns for the years mentioned.
Nine instructions were given to the jury. In Instruction 'A,' the court told the jury that if they believed from the evidence that 'the defendant acknowledged paternity of the children on his income tax returns, then the Court tells the jury that an income tax return filed under the penalties of perjury is equivalent to' a voluntary admission of paternity, in writing, under oath.
Defendant objected to that instruction and to two others, one relating to the measure of punishment and the other to the credibility of witnesses, on the grounds that they were contrary to the law and the evidence, and without evidence to support them. He opposed the admission of testimony regarding the contents of his tax returns on the specific ground that the returns themselves were the best evidence, and it had not been shown that they were unavailable. Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764.
After hearing the evidence and the instruction of the court, the jury returned the following verdict:
'We the jury believe the defendant to be the father of the two children in question and find him guilty of nonsupport of said children and order him to forfeit $1,000 bond for the sole support of children -- In lieu of jail sentence of 12 months on State Convict Road Force and fine of $500.00.'
The court overruled defendant's motion to set aside the verdict, and entered the following judgment, which is at variance both with the verdict and the provisions of § 20-61, Code of Virginia, 1958 Cum. Supp., the applicable statute. The judgment ordered that the Commonwealth recover of the defendant for the benefit of his two infant children a forfeiture in the amount of $1,000, payable to the mother of the said children for their sole use and support. It further directed that if default be made in the payment of the forfeiture by the defendant that 'he is hereby sentenced to confinement on the State Convict Road Force of this State for the period of twelve months; that during such confinement the State Highway Commissioner pay the sum of $15 per week for each of the two children out of funds appropriated for construction and maintenance of highways, with the right of the defendant, in lieu of said sentence on the State Convict Road Force, to execute a bond for the payment of said forfeiture to be approved by the court, * * *' and that the Commonwealth recover of the defendant 'the sum of $500 for fine and its cost,' and, 'If default be made in the payment of said fine and cost, and the same be not paid at or before the expiration of the said sentence on the State Convict Road Force that he (the defendant) be, and is hereby sentenced to additional confinement on...
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