Summary
In Clark v. State, 181 Miss. 455, 180 So. 602 (1938), the husband was prosecuted for wilful neglect to support minor children.
Summary of this case from Brewer v. StateOpinion
No. 33092.
April 25, 1938.
1. PARENT AND CHILD.
To establish offense of willful neglect to support minor children, state was required to allege and prove either a desertion of the parent of children who were in destitute and necessitous circumstances, or a willful neglect to provide for the support and maintenance of the children (Code 1930, section 861).
2. PARENT AND CHILD.
Where the proof is sufficient to show that there had been a willful neglect of the father to provide support for the children, it is not required that desertion be also shown within the usual and ordinary meaning of that term, to establish offense of willful and felonious desertion and neglect of children (Code 1930, section 861).
3. CRIMINAL LAW.
Generally, the state is limited to proving the specific charge made in the indictment.
4. CRIMINAL LAW.
Testimony as to offenses other than that charged in the indictment is admissible when the evidence has a direct bearing on the question at issue, or where there is an apparent relation or connection between the act proposed to be proved and that charged.
5. PARENT AND CHILD.
In prosecution for willful and felonious desertion and neglect of minor children, when defendant outlined as a defense in the cross-examination of a state witness that defendant's wife had taken the children and deserted the defendant and that he was doing all he could to support children, it was competent for state to show that his failure to support his children was not due to lack of funds, but to an improper diversion thereof (Code 1930, section 861).
6. CRIMINAL LAW.
In prosecution for willful and felonious desertion and neglect of children, where defendant was cross-examined, without objection, about alleged misconduct with another woman, permitting state thereafter to introduce testimony of officers tending to contradict defendant's denial of alleged misconduct over defendant's objection that such testimony was not in rebuttal was not reversible error, where no objections were made on ground that the officers' testimony constituted an attempt to prove separate and distinct offense (Code 1930, section 861).
7. CRIMINAL LAW.
Permitting testimony to be introduced in rebuttal which should have been introduced as substantive evidence in chief is not reversible error, unless it is shown that no opportunity is afforded the defendant to reply by surrebuttal testimony.
8. CRIMINAL LAW.
The admission of testimony in rebuttal which should have been introduced as substantive evidence in chief rests largely within the discretion of the trial court.
9. WITNESSES.
In prosecution for willfully neglecting to provide for support and maintenance of defendant's children, where defendant on cross-examination undertook to explain why he was separated from his wife, and consented to permit his wife to explain her side of the matter, error, if any, in permitting wife to testify was not reversible (Code 1930, sections 861, 1528).
10. PARENT AND CHILD.
Evidence sustained conviction for willfully neglecting to provide for support and maintenance of defendant's minor children under age of sixteen years (Code 1930, section 861).
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Hearst, Pittman Pittman, of Hattiesburg, for appellant.
The indictment was drawn under Section 861 of the Code of 1930.
The state utterly failed to prove that the appellant deserted his children in this case, and all testimony tends to show that the appellant's wife deserted the appellant and took the children and left their home in the country when they had plenty.
The state must prove beyond a reasonable doubt that the appellant was guilty as charged; in other words, the burden is on the state to prove beyond a reasonable doubt that the appellant not only deserted the children, but that he left them in destitute and necessitous circumstances, and the proof in this case will not sustain a verdict.
At the time the appellant's wife and children left the appellant, they had plenty. Moreover, the appellant had supported his children the best he could since they left him, and the appellant's wife was a practical nurse and worked almost as regular as the appellant. Also, some of the appellant's older children worked and provided means of supporting the family, and the appellant himself deeded to the appellant's wife their property in Hattiesburg.
Finklea v. State, 48 So. 1.
We submit that the motion at the close of the state's evidence to peremptorily find him not guilty should have been sustained.
We submit for the court's further consideration, the highly prejudicial testimony that was allowed to be introduced by the state, and objected to several times throughout the entire trial with reference to the appellant living in adultery with another woman by the name of Ruby Dykes. This is clearly a separate and distinct crime and had no connection with the case at bar.
Our courts have held on several occasions that it was reversible error to prove a separate and distinct crime from the one that the defendant was being tried for, unless it was necessary for identification of the defendant.
Dabney v. State, 33 So. 973; Baygents v. State, 110 So. 114; McLin v. State, 116 So. 533; Willoughby v. State, 122 So. 757; Floyd v. State, 148 So. 227.
The record discloses, and we admit, that under severe cross-examination by the honorable district attorney, and after the district attorney had asked the appellant's permission to put his wife on the stand to testify against him, that the appellant waived any objections and consented for the state to introduce his wife as a witness against him. Under these circumstances, and after the district attorney had put the question in issue in the presence of the jury and after the appellant had consented to his wife testifying in the presence of the jury, counsel for appellant made the statement, "let her testify." We admit these facts, but contend that the appellant or the appellant's counsel had no right, under the law, to waive or consent for the appellant's wife to testify in this kind of a case. Moreover, we submit that it was improper for the district attorney to ask the direct question, "will you permit your wife to testify." Not only was it improper, but we believe it amounted to reversible error within itself.
Finklea v. State, 48 So. 1; Huff v. State, 169 So. 839.
There are a great number of cases, and we are sure the court is familiar with them, holding that a wife is incompetent to testify against her husband.
Pearson v. State, 33 So. 638; Finklea v. State, 48 So. 1; McQueen v. State, 104 So. 168; Doss v. State, 126 So. 197; Ulmer v. State, 128 So. 749; Section 1528, Code of 1930; Greenleaf on Evidence, pages 472 and 482; Turner v. State, 60 Miss. 351.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
We submit that the evidence made an issue for the jury to determine whether the defendant's failure to care for his children was willful and obstinate, or whether in fact it resulted from his own actual inability to do any more than what he was doing for them.
And as to the proposition that the verdict is against the weight of the evidence, we submit that the evidence to support the verdict is not of such character as that this court would be justified in reversing and remanding this case for another trial.
Thomas v. State, 129 Miss. 332, 92 So. 225; Hinton v. State, 175 Miss. 308, 166 So. 762; Dean v. State, 173 Miss. 254, 160 So. 584.
It is true, and we readily concede, that the general rule is that the state is limited to proof of only one offense, namely the one charged in the indictment. But this rule does not apply under any and all circumstances. The inquiry before the court was whether or not defendant's failure to support his children was willful and deliberate. It is a familiar rule in the construction of wills, and it ought to apply with equal force here, that a man must be just before he is generous. The defendant's first duty was to care for his children before he began living with some other woman and buying her furniture, radio and the like. The fact that he was spending money in sustaining his adulterous relation with another woman has a direct tendency to show that his failure to support his children was not a lack of funds, but an improper diversion thereof. This court has always recognized that proof of another offense is competent whenever it is necessary to show guilty intent, purpose or design.
King v. State, 123 Miss. 532, 86 So. 339.
The statute, Section 1528, Code of 1930, provides that either the husband or the wife may testify in any proceeding, either civil or criminal, where both consent thereto. In this case the record shows that both consented. In other words, the defendant expressly authorized her to testify and she, by going upon the witness stand without objection, demonstrated that she "agreed." In such a case, we submit there is nothing of which the defendant can complain. On the other hand, we submit that this is one of the class of cases in which the wife is allowed to take the stand as a witness against her husband.
McRae v. State, 104 Miss. 861, 61 So. 977.
On an indictment drawn under section 861, Code 1930, the appellant was tried and convicted in the circuit court of Forrest county on the charge of having willfully and feloniously deserted and neglected three of his minor children under the age of sixteen years, and of having left them in destitute and necessitous circumstances. From this conviction, judgment, and sentence of the court he prosecutes this appeal.
In order to establish the offense condemned by this statute, it is necessary for the State to allege and prove either a desertion on the part of a parent of such child or children, under the circumstances therein mentioned, or a willful neglect to provide for the support and maintenance of such child or children. Where the proof is sufficient, as in the case at bar, to show that there has been a willful neglect to provide such support and maintenance, it is not required that desertion be also shown, within the usual and ordinary meaning of that term.
For the State the proof showed that the defendant was under a duty to support the three minor children named in the indictment; that he was financially able to do so, since he owned a 40-acre farm and dwelling in the country, and was earning 75 cents per hour for approximately one hundred and thirty hours a week at the time complained of; that his children were allowed to go without the necessary food, and to become undernourished, and to some extent a charge on the community in which they lived; that they were not provided with sufficient clothing; and that the defendant did practically nothing to relieve this condition.
For the defendant the proof showed, but not without conflict, that he contributed approximately $5 a week to the support of his wife and children; that he did not desert his children, but that his wife removed them from their home to a small house near the corporate limits of the city of Hattiesburg during his absence, and declined to permit him to continue living with her and the children; and that he continued to do the best he could toward contributing to their support and maintenance.
In response to this contention of the defendant, the State undertook to show, over his objection, that he had created such a condition of affairs at home as to render it impossible for his family to continue living with him, in that he had left them on the farm without providing the necessary food and clothing, and was spending a part of his time and his earnings on other women.
The admission of this testimony is assigned as error. It is the general rule that the State is limited to proving the specific charge made in the indictment, but an exception to this rule is that the testimony as to other offenses is admissible when it has a direct bearing on the question at issue, or where there is an apparent relation or connection between the act proposed to be proved and that charged. King v. State, 66 Miss. 502, 6 So. 188. In other words, when the appellant outlined as a defense, in the cross-examination of the State's witnesses, that his wife had taken the children and deserted him, and that he was doing all he could to support and maintain his children from the wages earned by him, it was competent for the State to show that his failure to support his children in such manner as to prevent their becoming destitute and in necessitous circumstances was not due to lack of funds, but to an improper diversion thereof; and also to show that he was responsible for their removal from his household, and had thereafter moved another woman into his house, where he provided a new living room suite and a radio, which he was paying for out of his wages, instead of using the money to relieve the hunger of his children.
The appellant contends that the court below also erred in admitting evidence to show specific acts of adulterous conduct on his part with this other woman. However, the record shows that he was interrogated on cross-examination in detail about this alleged misconduct, without objection on his part, and that when the State thereafter introduced officers of the law to testify in contradiction of his denial thereof, his objection to their testimony was made on the sole ground that it was not in rebuttal, and that no specific objections were made on the ground that it constituted an attempt to prove a separate and distinct offense.
It is not reversible error for the court to allow testimony in rebuttal which should have been introduced as substantive evidence in chief, unless it is shown that no opportunity is afforded the defendant to reply by surrebuttal testimony. Roney v. State, 167 Miss. 827, 150 So. 774, and other cases therein cited. In other words, the admission of such testimony rests largely within the sound discretion of the trial court.
It is further contended that it was error to allow the State to introduce the appellant's wife as a witness against him in rebuttal. Assuming that she was an in competent witness in a case of this character, we find that the record shows that the trial court had on one or two occasions sustained objections to an inquiry regarding the appellant's willingness for his wife to testify as a witness in the case; but that finally, when the appellant was on cross-examination, he undertook to explain why he was separated from his wife, and also to go far afield from the subject matter in issue; and thereupon he was asked by the district attorney if he would let his wife explain her side of the matter, to which he replied as follows: "I don't care what she explains, let her explain. If you will go back and start where the first trouble started, I would like for her to testify — I am anxious for her to testify — I want her to testify."
Thereupon, appellant's counsel stated in the record, "Let her testify." There then appears the following, dictated into the record by the district attorney: "Let the record show that this testimony is going in after the defendant has waived all right to object to his wife testifying."
No further objection to this procedure appears at any point until the wife was called as a witness, under the foregoing agreement, in rebuttal, of the testimony which the State had consented for the appellant to give. While we would not be understood as sanctioning an agreement for the introduction of irrelevant and incompetent testimony, yet, in view of the fact that by common consent the testimony both for the State and for the defendant under such agreement exceeded the bounds of the issue involved, we do not think that the appellant can complain of the action in holding that he had expressly waived the right to object to his wife's testifying, under the circumstances.
But appellant says that neither he nor his counsel had the legal right to waive such objection, for the reason that the public is also interested in maintaining the peace and sanctity of the marital relation, citing Corpus Juris and text-writers on the law of evidence. Our statute, however, section 1528, Code 1930, provides that either the husband or the wife may testify in any proceeding, whether civil or criminal, where both consent thereto; and in the case of Huff v. State, 176 Miss. 443, 169 So. 839, the defendant was held to have waived the right to object to his wife's testifying against him where he was being tried on an indictment for the larceny of her property.
We are therefore of the opinion that such errors as may have been committed on the trial would not justify a reversal of the case, and that the evidence was sufficient to warrant the jury in finding that the appellant had willfully neglected to provide for the support and maintenance of his children, even if he had not actually deserted them, in violation of the statute in question.
Affirmed.