Summary
In Roney v. State, 167 Miss. 827, 150 So. 774 (1933), the appellant contended that the children at issue were not his. After the State rested its case in chief and appellant had introduced his evidence in defense, the State was permitted to introduce a witness in rebuttal that the appellant admitted the children were his and not someone else's.
Summary of this case from Smith v. StateOpinion
No. 30736.
November 13, 1933.
1. CRIMINAL LAW.
Rule requiring laying of foundation for introduction of evidence of admissions is operative only when evidence is introduced to impeach witness other than party to litigation.
2. CRIMINAL LAW.
Party having burden of proof and duty to open case must in his opening, and before he rests in his proof, introduce all substantive evidence relied upon to establish his demand.
3. CRIMINAL LAW.
Whether evidence offered in rebuttal should have been introduced as substantive evidence rests largely in trial court's discretion.
4. CRIMINAL LAW.
Court should resolve doubt whether evidence offered in rebuttal belongs to evidence in chief in favor of reception in rebuttal, where reception will not give it undue weight, opposite party would be as well prepared to meet it by surrebuttal as if offered in chief, and is given opportunity to reply by surrebuttal.
5. CRIMINAL LAW.
After state rested its case in chief in prosecution for child desertion and defendant had introduced evidence in defense, admitting, in rebuttal, testimony that defendant had admitted he was father of children involved, held not error (Code 1930, section 861).
APPEAL from Circuit Court of Jones County.
B.F. Carter, of Laurel, for appellant.
In the very outset of the argument on behalf of appellant we direct the court's special attention to the fact that appellant admitted the fatherhood of the child, Charlene Roney, and that during practically all the time since the date of his separation from Grace Roney, the mother of said child, he has had the care and custody, support and maintenance of said child, and that he is not charged in the indictment with desertion of this child, but as to the two children of said Grace Roney, to-wit: Edgar and Grady, he denies most emphatically that he is the father of either one of them.
It is wholly inconceivable that any person should be convicted of deserting a child not his or her own child.
Section 861, Mississippi Code of 1930.
The rule is that the burden is on the state to prove every essential element of the crime charged; and the state must convict on testimony showing the guilt, not on the failure of the defendant to show his innocence. Page v. State, 133 So. 216; Owens v. State, 80 Miss. 499, 509, 32 So. 152; Hampton v. State, 99 Miss. 176, 186, 54 So. 722.
Certain evidence of Mrs. Easterling was wholly inadmissible; it was not in rebuttal; no proper predicate was laid for the introduction of such testimony.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
It is a general rule of law that a child born after marriage is presumed to be legitimate, and this presumption of legitimacy is not defeated by an anti-nuptial conception.
McRae v. State, 104 Miss. 861, 61 So. 977; Herrin v. Goodman, 43 Miss. 393; Underhill's Cr. Ev. (2 Ed.), section 527; Ulmer v. State, 157 Miss. 807, 128 So. 749.
It was proper to make profert of the children to the jury, in order to show the resemblance of such children to the defendant.
Smith v. Hawkins, 93 Miss. 588, 47 So. 429; Welford v. Havard, 127 Miss. 88, 89 So. 812.
The state, in making out this case, after showing the children were born at a time when the marital status had not been dissolved annd while the husband had access to his wife, could then rely on the presumption of legitimacy until such legitimacy should be questioned. The defendant denied that the children were legitimate and Mrs. Easterling was recalled on rebuttal and stated that the defendant had repeatedly declared that he knew and acknowledged himself to be the father of these children. Without any further argument on this proposition, we submit that if there ever was a case where the state was entitled to rebuttal testimony, it was in the case at bar, under the circumstances just related.
Appellant was convicted of a violation of section 861, Code of 1930, which is the statute which makes it a felony for a parent to desert or willfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years, leaving such child or children in destitute or necessitous circumstances. The principal defense of appellant was that the two children were not his, but were the illegitimate children of some other father; and he so testified as a witness in his own defense.
The evidence is sufficient to sustain the verdict, and we have carefully examined the several assignments of errors asserted to have been committed by the trial court, and are of the opinion that none of them are reversible under this record, and that but one will require comment in an opinion. That assignment is upon the fact that after the state had rested its case in chief, and appellant had introduced his evidence in defense, the state was permitted to introduce a witness in rebuttal, which witness testified in rebuttal, over the objection of appellant, but appellant had on numerous occasions admitted to the witness that the said children were his children, and not those of some other father.
Appellant complains of this evidence on two grounds: First, that no predicate was laid therefor; and, second, that the evidence was not properly rebuttal, but should have been introduced by the state before it closed its case in chief. As to the first ground, appellant overlooks the fact that the rule requiring the laying of a foundation or predicate for the introduction of evidence of admissions is operative only when it is sought thereby to impeach a witness other than a party to the litigation, and does not apply when the admission is one made by the party himself. 1 Ency. Ev. 610; 16 C.J. 626, 627.
Upon the second ground: It is the general rule in this state, as elsewhere, that the party who has the burden of proof, and the duty to open the case, must in his opening, and before he rests in his proof, introduce all the substantive evidence upon which he relies to establish his demand, and the extent of that demand. The rule has an apparent, but not real, exception in those civil cases where the introduction of less than the entire of the substantive evidence in the plaintiff's behalf makes out a prima facie case, whereupon the plaintiff may rest; the burden of proceeding with the evidence being then shifted to the defendant. The general rule first aforesaid has been in some cases rigidly enforced under our decisions, when the prosecuting party omits to introduce proof clearly essential to the maintenance of his case, and seeks to supply the omission by rebuttal. See, for instance, Mock v. Hines, 125 Miss. 111, 87 So. 423. On the other hand, a greater number of our decisions apply the more liberal rule, and in order that justice may be done, have admitted testimony in rebuttal, although not strictly rebuttal in its nature, and this has been done even after the testimony has been closed on both sides. Smith v. Young, 134 Miss. 738, 769, 99 So. 370, 35 A.L.R. 69; Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 29, 101 So. 709; French v. R. Co., 74 Miss. 542, 21 So. 299.
There are such varieties of circumstances attending the trials of cases, which circumstances operate in so many ways upon the stated rule of procedure, so many instances arise where justice requires its relaxation, while in other cases the circumstances will be such as to demand a strict adherence to it, that appellate courts have been obliged to confide the determination of that issue largely to the discretion of the trial courts. Illinois Cent. R. Co. v. Brown, 149 Miss. 42, 47, 115 So. 115. And this is particularly true when, under the circumstances of the particular case, the question is not free from doubt whether the evidence offered in rebuttal is evidence in chief, or only that which properly belongs to rebuttal. So it is that appellate courts do not attempt to lay down precise rules for the control of the discretion of the trial courts in this matter, else the discretion would be unduly limited and hampered; but there is a rule which will be found of substantial aid in this connection, and while obviously not at all inclusive of all cases, it will cover most cases. That rule is that when the question is not free from doubt whether the evidence offered in rebuttal is that which belongs to the evidence in chief, or whether it is rebuttal evidence proper, the court should resolve the doubt in favor of the reception in rebuttal where (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.
The point raised by appellant falls within the rule just stated, and there was no error in the trial court in respect to it.
Affirmed.