People v. Avington

California Court of Appeal Oct 16, 1963 No. Crim. 4309Published

Before: Shoemaker

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Holding. The court held that the evidence was sufficient to support a conviction for failure to provide child support under Penal Code section 270, as the statutory presumption of willfulness was not overcome by the defendant's testimony regarding his limited earnings. Furthermore, the court found that a potentially ambiguous jury instruction regarding the necessity of proof was not prejudicial when considered alongside other instructions and the defendant's failure to object at trial.

Issues

Whether the evidence was sufficient to support the jury's finding that the defendant's failure to provide child support was willful and without lawful excuse.
Whether the trial court committed reversible error in its jury instructions regarding the necessity of proof for willfulness and lack of lawful excuse.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The statutory presumption of wilfulness and the absence of a lawful excuse was established by Mrs. Avington’s testimony that appellant had paid nothing toward the support of his children during the period in issue.”

“These authorities establish that appellant’s earnings were large enough to enable him, had he so desired, to contribute something toward the support of his five minor children.”

“We might add that appellant’s failure to object to the instruction in question and to request a more specific or complete statement of the rule precludes him from raising this point on appeal.”

SHOEMAKER, J.

Defendant Harry Avington was convicted after trial by jury of violation of Penal Code, section 270. Defendant appeals from the judgment of conviction and from the order denying his motion for new trial. The latter order is no longer appealable. (Pen. Code, § 1237.)

The record shows that Clara Avington, the wife, was the sole witness for the prosecution; that five children were born of the marriage; that under an interlocutory decree of divorce granted her October 21, 1958, defendant was ordered to pay child support in the amount of $5.00 per child per week; that in 1960 the defendant paid $30 toward the support of his children; that in December 1960 defendant called

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her and stated he was going to Alaska to look for work, and that she did not hear from the defendant again or receive any child support payments until July or August of 1962, when the defendant visited his children and gave each of them $1.00.

The defendant testified that he had been unable to find employment in California and, in December 1960, had decided to go to Alaska, but changed his mind and decided to go to Arizona to stay with his married sister. The defendant arrived in Arizona on December 30, 1960, and lived with his sister until May 21, 1961. The defendant testified that he looked for work continually during this period, but was unable to find a job. In February 1961, the defendant applied for California unemployment benefits and, on May 21, 1961, received a check for $400. At this time he owed his sister $380 for room and board, which he settled for $300. The balance he used to go to Seattle.

Upon arriving in Seattle, the defendant lived at the YMCA; his expenses came to $10.40 per week for a room, $3.50 per day for meals, and 90 cents per week for YMCA membership. He remained in Seattle until March 11, 1962, and was successful, during that period, in obtaining several jobs. He first worked one day as a ditch digger, earning $10, but was injured. He then worked for Puget Sound Transportation for two months, earning a total of $400. Since transportation was necessary for this job, the defendant purchased two cars at a total cost of $187.50. When both of the ears broke down, the defendant abandoned this job. He thereafter worked a day and a half as a dishwasher, earning $23; conducted a transportation study for 10 days, earning $120; and worked for a day and a half moving furniture, earning $26. He also received unemployment benefits in the amount of $320.

People v. Avington

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SHOEMAKER, J.

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