State v. Tschirner
| Decision Date | 03 December 1973 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Respondent, v. Henry J. TSCHIRNER, Appellant. 26334. |
| Court | Missouri Court of Appeals |
Roy W. Brown, Kansas City, for appellant.
Ralph L. Martin, Pros. Atty., Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.
Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.
Upon an information filed in a magistrate's court charging violation of § 559.353 RSMo 1969, V.A.M.S. defendant was found guilty of child abandonment and nonsupport, and was sentenced to thirty days in the County jail with a suspension on condition of his paying $10.00 per week toward support of the child. Defendant appealed and was tried de novo before a jury in the circuit court. From a jury verdict of guilty and a consequent fine of $1,000.00, defendant appeals to this Court.
This child in question was born on June 25, 1970, to Sharon Sullivan. The uncontradicted evidence was that Sharon and the defendant began living together in September, 1969, and continued to do so to at least the middle of December, 1969. Sharon testified that during that period of time they had sexual intercourse together, and she further testified that she did not have sexual relations with any other man. Defendant admitted in his testimony that during the period mentioned he and Sharon shared the same bedroom and the same bed.
In November, 1969, Sharon learned definitely that she was pregnant and so advised the defendant. Sharon and two other witnesses who appeared for the State testified that about Thanksgiving of 1969 defendant admitted that he had a 50--50 responsibility for the unborn child. Sharon and two other witnesses for the State also testified that on an occasion on December 7, 1969, defendant put his arm around Sharon and stated that since they were going to have a baby they had decided to get married.
Defendant and Sharon separated in January, 1970. Thereafter, and shortly before the birth of the bady, defendant went to Europe, where according to his own testimony, he was employed by a PX in Munich. After his return from Europe in the Fall of 1970, he met with Sharon, at which time she asked for financial help. One of the State's witnesses, Diana Dudley, testified that thereafter defendant spoke to her about his problem in deciding what his responsibility was for financial help to 'his son'. However, no financial help was ever forthcoming from defendant to Sharon for the child.
Defendant raises nine points of alleged error, none of which merits any disturbance of the verdict and sentence.
For his first point, defendant claims that an element of the State's case was proof that at some point he had custody and control of the child, and that in absence of such a showing the conviction cannot stand. This contention would have been correct in Missouri until 1953. Until that date, and especially under the ruling in State v. White, 363 Mo. 83, 248 S.W.2d 841 (Mo.1952), the Missouri decisions recognized a distinction between the obligation for the support of an illegitimate child as compared to a legitimate child, and with respect to the former, the father could not be held responsible for support absent a showing that he had assumed custody and care. However, this result was changed by a legislative amendment in 1953, when former § 559.350 was amended to insert the following: '(I)t shall be no defense to such charge that the father does not have the care and custody of the child or children * * *'.
Defendant argues that the old rule of the White case has been reinstated by reason of a further amendment to the statute in 1965 whereby old § 559.350 was divided into what has now become §§ 559.353 () and 559.356. Defendant's argument in this respect need not be analyzed in detail, since the result of that argument runs directly counter to the decision of the Missouri Supreme Court in R . . . v. R . . ., 431 S.W.2d 152 (Mo.1968), which was decided after the date of the statutory amendment upon which defendant relies. In that case, the court reviewed certain United States Supreme Court decisions construing the equal protection clause of the Federal Constitution, and concluded that under these new interpretations of the equal protection clause certain former Missouri decisions, including the White case, should no longer be followed. Moreover, and of controlling importance here, the court held that a distinction should no longer be drawn between legitimate and illegitimate children under certain specified statutes, among which the Supreme Court included § 559.353, the very statutory section presently involved in this case. In this connection, the opinion in R. . . . v. R . . . holds at l.c. 154:
See also In re L, Part II, 499 S.W.2d 490 (Mo.banc 1973).
Accordingly, defendant may be held responsible for support of this child, once it is proved that he is the father, regardless of whether he ever had legal care or custody.
Defendant next complains that the State failed to prove that he was able to provide for the child. The State's evidence on this element was that defendant had been gainfully employed before the birth of the child; that he was gainfully employed in Germany after the birth of the child; that he purchased a motor cycle, a jeep and stereo tape deck or component system; that he was an officer of Technical Materials Company and had an interest in a publication Kansas City Entertains; and that he had performed the voice track for a certain commercial advertisement. This evidence is sufficient to support a finding of financial capacity to make provision for the child and serves to distinguish this case from State v. Nelson, 463 S.W.2d 614 (Mo.App.1971), upon which defendant relies. See State v. Roseberry, 283 S.W.2d 652 (Mo.App.1955).
Defendant contends next that instruction No. 4 was erroneous in that it failed to submit an adequate converse instruction. This argument arises from the fact that defendant requested in general terms that the trial court give a converse instruction, but defendant did not submit any particular requested instruction for the court's consideration. Notwithstanding this failure by defendant to submit a form of instruction requested, the trial court did formulate and give an instruction advising the jury that they should find for defendant if they did not find and believe that defendant was the father of the child in question. Defendant now argues that this converse instruction No. 4 should have gone still further and should have instructed the jury to find for defendant if they did not believe he had the ability to provide child support.
Defendant has no standing to complain as to the form of the converse instruction given, since he did not submit any particular instruction for the court's consideration. In view of that failure, there was a sufficient converse of all elements by the usual tail to the State's main instruction: 'And, unless you find the facts to be as above stated, you are instructed to acquit the defendant'. State v. Caldwell, 423 S.W.2d 738, 741 (Mo.1968); State v. Hill, 438 S.W.2d 244, 249 (Mo.1969).
Furthermore, the converse instruction given by the court did submit to the jury the one and only issue upon which defendant chose to pitch his defense. Defendant's counsel had told the jury at the very beginning: 'The very issue is is this man the father of the baby that was born to this woman on June the 25, 1970?' Along the same line, during one of the conferences in chambers, the trial judge remarked without any objection or correction by defense counsel that: 'really, the single issue in the case is whether or not this defendant is the father of the child * * *'. Still further, when the defendant took the stand, his testimony was confined to a denial of paternity. Finally, in closing argument to the jury, defense counsel stated: 'Now, there is no evidence in this case that he ever was really able to support this child, but I just want to mention this to you, that's not our defense, our defense is this child is not his and the State has not proved it.' (emphasis added).
In view of the nature of the defense made in this case, the trial court was entirely fair in the converse instruction given, and indeed went considerably beyond what was legally required.
Defendant next argues that the information is fatally contradictory in three different respects.
A. The first contradiction found by defendant is the allegation that defendant is 'the lawful father' while at the same time the information also alleges that the child was 'born out of wedlock'. While the information is inept in this respect, the discrepancy mentioned is immaterial. For reasons already discussed in Section I of this opinion, it no longer makes any difference whether this child be legitimate or illegitimate so far as the obligation of the father to support is concerned. Accordingly, both phrases called to attention by the defendant may be disregarded as surplusage. State v. Rapp, 412 S.W.2d 120, 123 (Mo.1967); State v. Sykes, 436 S.W.2d 32, 35 (Mo.1969); State v. Beck, 449 S.W.2d 608, 611 (Mo.1969).
B. Defendant also seeks to find a contradiction in that the information alleges child abandonment and also nonsupport of the child. This in not objectionable under the rule of State v. Osborne, 413 S.W.2d 571 (Mo.App.1967).
C. Another matter of which defe...
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