State v. Nelson, 25439

• Decision Date: 01 February 1971
• Docket Number: No. 25439,25439
• Citation: 463 S.W.2d 614
• Parties: STATE of Missouri, Respondent, v. Larry Joe NELSON, Appellant.
• Court: Missouri Court of Appeals

Page 614

463 S.W.2d 614

STATE of Missouri, Respondent, v. Larry Joe NELSON, Appellant.

No. 25439.

Kansas City Court of Appeals, Missouri.

Feb. 1, 1971.

L. E. Atherton, Milan, for appellant.

Marvin L. Sharp, Pros. Atty., Mercer County, Trenton, for respondent.

FLOYD L. SPERRY, Special Commissioner.

The State charged that defendant, Larry Joe Nelson, 'from the first day of September, 1968, to on or about the 7th day of July, 1969, at and in the County of Mercer and State of Missouri, did--unlawfully and wilfully fail, neglect and refuse to provide, without good cause, the necessary and proper food, clothing, maintenance and support for his lawful minor children under the age of sixteen years, to-wit: Tammy Nelson, of the age of eight years; Terry Nelson, of the age of six years, and Tracy Nelson, of the age of five years, * * *'. This charge is based on Section 559.353 Mo.R.S. 1969, Laws Missouri, 1965, p. 669, Section 599.351. It provides that one who violates its provisions 'is guilty of a misdemeanor and upon conviction thereof shall be punished as provided by law.' Section 556.270 V.A.M.S.1969 provides that whenever an offense is declared by statute to be a misdemeanor, and no punishment is prescribed by that or any other statute, the offender shall be punished by imprisonment in a county jail not exceeding one year, or by a fine of not exceeding one thousand dollars, or by both such fine and imprisonment.

The cause was tried to the court, a jury having been waived. The State presented evidence but defendant, although represented by counsel, presented no evidence, except for a letter written by defendant's counsel to complainant herein, and some checks from defendant to complainant. The court found defendant guilty as charged in the information and ordered that he be confined in county jail for thirty days, 'which is suspended upon condition that defendant adequately support his said children.' Defendant appeals.

For grounds of appeal defendant states that the law requires that the State prove 'the necessary element of the offense including ability to support'; and that 'the State did not, in the present case, prove that defendant was financially able to make payment of child support during the period charged * * *.' (Italics supplied.) Defendant seeks reversal because of the State's failure to prove that he was 'financially' able to support his children.

There was evidence from complainant, the mother of the children, to the effect that these children were born of the marriage between defendant and her; and she and defendant were divorced on October 5th, 1964; that witness has since married a Mr. Swan; that she and the children had lived in Mercer County from July 7, 1968, until the filing of this petition; that, during all of this time, until this trial, she had maintained, cared for, and supported the children; that defendant had not contributed anything to the support of the children; that, previously, he contributed $40.00 per month; that he came to her home in October, 1968, when he received a request from witness that he pay a doctor bill incurred by the children when at school; that he also owed a doctor's bill for $70,00, which was owed when the divorce was granted; that he did not pay either. She stated that defendant is able to work, but did not like to do so; that he is a bulldozer operator and receives more than ordinary labor wages; that in August, (1968) he came and wanted to take the children for visitation; that he had been drinking; that she refused to permit him to take them because he was drinking, and had also failed to notify her, in advance, that he wanted to take the children, as was required by the divorce decree; that he has paid nothing since that date.

On cross-examination she stated that, in November, 1967, defendant first began paying child support; that he paid $40.00 per month; that he ceased paying in August, 1968.

Defendant offered in evidence, in connection with the cross-examination of Mrs. Swan, certain checks payable to Linda Swan and signed by defendant's present wife. They are all dated in 1968, as follows: Jan. 1, $40.00; Feb. 2, $40.00; Mar. 26, $40.00; April 1, $40.00; May 1, $40.00; June 3, $40.00; July 2, $40.00; July 24, $27.00; Aug. 1, $40.00. The State Objected to the reception of the checks in evidence on the grounds that the evidence was not material, since defendant was not charged with failure to support his children during the period covered by the checks.

To this objection defendant's counsel answered: 'That's true, but * * * apparently they were having trouble over the custody * * * and they are offered to show apparently there was some sort of an understanding between Mrs. Swan and the defendant as to the amounts that were being paid. * * *' (Italics supplied.) The court ordered the exhibits admitted 'On the issue of intent, not amount. * * *' Thereafter, defendant's counsel asked complainant if, shortly after September 1, 1968, she received a letter from counsel. She answered, 'Yes.' Counsel then asked if she had that letter with her. She answered, 'Yes'. Counsel then asked if she ever told defendant that he had no visitation rights to which she answered, 'No.' The State objected 'to this because it is immaterial * * *.' The court said, 'I'm not sure what your purpose is, * * *' To this defendant's counsel replied, '* * * one of the things essentially here is our intent, and this, I think, shows that the defendant was trying to work the thing out, their difficulties at that time.' The letter marked defendant's Exhibit No. J was offered in evidence. It is dated September 7, 1968. The State objected on the grounds that it was self-serving, 'just a letter' from defendant's counsel to Mrs. Swan. Defendant'...