Appeal from Circuit Court, Lane County. Douglas R. Spencer, Judge. No. 72-0598.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Burgess, Assistant Attorney General, Salem.
Fort, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant was convicted of nonsupport of his two minor children. ORS 167.605. He appeals from the resulting judgment. His sole assignment of error is the denial by the court of his motion for a judgment of acquittal.
He did not take the stand and offered no evidence in his own behalf. The evidence showed that he was divorced on April 5, 1971. At that time he was a young, able-bodied man who had been working during the marriage at physical labor, particularly driving log trucks, which he was doing at the time of his divorce. The divorce court entered a support order against him requiring him to contribute $50 a month to the support of each of his two children. The wife testified that he normally received $225 takehome pay every two weeks.
The support ledger showed that on May 26 he paid $50. Thereafter, he paid nothing.
The indictment of February 18, 1972, charged failure to support for more than the 60-day period, and the state elected to stand on the period of July 1 to August 31, 1971. The essence of defendant's position is that the state was required, in order to establish a prima facie case, to show that during that 60-day period he was gainfully employed and actually received funds therefrom sufficient to enable him to have paid the required support money. In the absence of such direct evidence, he contends that the state has not shown that his failure to pay was wilful.
We disagree. This case is somewhat similar to State v. Francis, 126 Or 253, 256, 269 P 878 (1928), where the court stated:
"The facts of this case, when the state rested,
disclosed a young man in the prime of life, in good health, bright of intellect, well educated, somewhat proficient as a high school athlete, and yet this young man the evidence showed had contributed not a cent towards the support of his two children in three years of time; nor had he displayed enough interest in them to visit them, although he resided in the same city in which they resided, and although their mother had demanded support from him. Since ordinarily a young man so richly endowed by an indulgent nature is able to support in part at least his family, the court properly held that the evidence submitted by the state constituted a prima facie case."
In other words, the element of wilfulness was established, in part, by circumstantial evidence of the defendant's ability to pay at least some support ...