Opinion
No. 37332.
December 12, 1949.
1. Criminal procedure — parent and child — desertion of or failure to support child.
When under the statute the indictment charged the father with the desertion of his child and also for failure to support it, and not in the alternative as could have been done, and the charge was so submitted to the jury, it was error to exclude evidence offered by the father that he was kept away from the child by those having its custody. Sec. 2087 Code 1942.
2. Criminal procedure — parent and child — desertion of or failure to support child — scope of testimony.
The offense under the statute for desertion of or failure to support child is a continuing one, and evidence by the State of relevant facts and circumstances extending back for a period of 4 1/2 years are properly admitted but when such evidence has been received it is error to confine the defendant only to such explanatory or defensive facts and circumstances as had transpired within the last two years. Secs. 2087 and 2427 Code 1942.
3. Criminal procedure — parent and child — burden of proof on charge of desertion or failure to support.
In a prosecution under the statute for failure to support child, the burden of proving that there had been a wilful neglect or refusal of such support or maintenance is upon the State, and not on the accused to prove that his action was excusable or justifiable. Sec. 2087, Code 1942.
4. Criminal procedure — courts — jurisdiction.
The fact that the chancery court had acquired jurisdiction in a divorce proceeding wherein the custody of the child was awarded to the mother with an order upon the father for the support of the child, does not deprive the criminal courts of jurisdiction to proceed with a subsequent indictment under the statute for the father's wilful failure to provide for the support and maintenance of the child.
5. Criminal procedure — parent and child — statutory charge of desertion of child — destitute or necessitous circumstances.
In a prosecution under the statute relating to the desertion of a child leaving it in destitute or necessitous circumstances, it is incumbent on the State to show beyond every reasonable doubt that the child was so left and it is not enough to show that it was in destitute or necessitous circumstances so far as any contribution made to it by the defendant is concerned.
Headnotes as approved by McGehee, C.J.
APPEAL from the county court of Jones County; B.F. CARTER, Judge.
Easterling Easterling, for appellant.
The case of Clark v. State, 180 So. 602, is one of the controlling cases where this honorable court has affirmed the conviction of a defendant charged with the crime of child desertion. In that case the court said in the opening paragraph, "To establish offense of wilful neglect to support minor children, state was required to allege and prove either a desertion by the parent of children who were in destitute and necessitous circumstances, or a wilful neglect to provide for the support and maintenance of the children."
Further in the case of Horton v. State, 166 So. 753, the court said, "Offense of child desertion is a continuing one, so that prosecution therefore was not barred by three year statute of limitations, where father deserted family more than 2 years before prosecution was commenced, but never returned." Of course, this is also a case of affirming conviction; however, Horton left his child or children in 1931 and was indicted in 1935, and the State offered evidence to cover that period of time and appellant in that case assigned that as one of the errors and this court held that such testimony on behalf of the State was competent.
The old adage "That which is sauce for the gander is also sauce for the goose" should apply here. Certainly, if the State may go back past the statute of limitations and introduce testimony surrounding facts and circumstances of the separation which is more than 3 years prior to the indictment, then certainly the defendant should be allowed to go into all of the testimony surrounding the facts and circumstances of the entire period of separation, as certain testimony on behalf of the defendant would show that the desertion was not wilful or might even show that it was beyond the control of the defendant to do otherwise than what he did.
Permit us if you please in this argument to draw this illustration: Suppose John Doe is married to a pampered and petted child who is the only daughter of a cranky mother. That to John Doe a child is born. That John Doe, even though of poor circumstances and of small means, provides his wife and child with a little home, but the mother of his wife being unable to live without her daughter takes her daughter and said child from John Doe's home, and realizing that he could not live in the same home with his mother-in-law John Doe goes to another city, secures employment, rents an apartment, and returns for his wife and child. That after one week the mother-in-law again being unable to live apart from her only daughter goes to the home of John Doe, and while he is away on a job working his dear mother-in-law again takes his wife and child and carries them back to her home without the knowledge of the child's father. John Doe then becomes frantic and returns to his mother-in-law's home in an effort to locate his wife and baby who disappeared while he was away at work and on arriving at the home of his mother-in-law, his wife's brother who is a strong, robust fellow assaults John Doe who is a man of small stature and flayed him unmercifully upon every occasion he even attempted to see his child. That John Doe has no way of ascertaining under such circumstances as wilfully deserting his child destitute circumstances or whether the child needs support. And that further during the meantime, John Doe has been advised that he could not see his child, that his child does not need him and was being provided for. Suppose further that John Doe under these circumstances tried later at every opportunity afforded him to see his child, buy it toys and trinkets, clothes and also give it money. Is Section 2087 intended to penalize John Doe under cuch circumstances as wilfully deserting his child and with the stubborn intent not to provide for it?
In the case at bar the evidence clearly shows that on both occasions when appellant had provided his wife and infant child with a home, his wife's mother would take appellant's wife and child from appellant's home without his knowledge and admittedly against his will. This is admitted by witnesses for the State. It is further admitted by the same witnesses that the appellant did contribute to the support of the child and that he bought clothes, toys and Christmas presents. Not only did he contribute to the child's support but he attempted to take the child and put it under the care of the doctor. He was attached to the child as well as were the other members of the family, and the child was attached to him. The evidence further shows in the case at bar that when the child was sick the appellant remained with it during the entire time it was confined to the clinic.
We state to this honorable court that the State never proved wilful desertion or wilful neglect on the part of appellant but it will seem from the entire record of this case that the trial court, together with the prosecuting attorney finally started and wound up prosecuting appellant for nonsupport.
To bear out our contention even though that is a broad statement, it will be seen from the record that the State introduced the decree awarding alimony and support to the prosecuting witness and appellant's child. It was not shown by any evidence that from the time appellant's mother-in-law took appellant's wife and child from appellant's home in Mobile until the divorce of appellant and his wife, and her remarriage, that appellant was in any manner guilty of desertion of his child. Neither was it shown that appellant wilfully refused to provide for his child which by a divorce decree it allotted $60 to appellant's former wife and his child together. Yet, by no stretch of the imagination could it be assumed that appellant should pay $60 per month, part of which was for support of his wife after her marriage, or stand guilty of child desertion. This should have been a chancery trial for reformation of decree and not a criminal prosecution for child desertion. George H. Ethridge, Assistant Attorney General, for appellee.
It will be noted that the chancery court in 1944 had granted the decree divorcing the bonds of matrimony between the appellant and his first wife, now Mrs. Kelly, and that the decree had awarded permanent custody of the child to the mother, and decree that $60 per month be paid to Mrs. Kelly for the support of herself and the child and directing that this money be paid to the former wife and not to anyone else. While this matter was not specifically pleaded by either the appellant or the State in this case, yet it appears to have been introduced by the State and was considered in the trial and seems to me to be an essential part of the case as the chancery court had jurisdiction both of the child and the subject matter of divorce and alimony and of minor's business under the Constitution.
Section 159 of the Constitution vests in the chancery court full jurisdiction in the following matters — (b) divorce and alimony; (d) minor's business and the words "full jurisdiction" give to the court full power to dispose of said functions. Bank of Mississippi v. Duncan, 52 Miss. 740; G.P.R. Co. v. Brooks, 66 Miss. 583, 6 So. 467; Eyrich v. Capital State Bank, 67 Miss. 60, 6 So. 615. The chancery court has the power to enforce its judgment for the support of a minor child by contempt proceedings by confining the delinquent party in jail until he complies with the order for the support of the minor. This is a constitutional grant of jurisdiction to the chancery court and affords an effective remedy for the support of a minor child according to the order of the court from which imprisonment in contempt he cannot be released except by the chancery court. The jurisdiction of minors and minor's business includes necessarily the power to adjudicate and afford full relief in such matters. Jurisdiction of divorce and alimony, likewise, gives the chancery court the power to make its judgment or decree effective and it may imprison the party ordered to pay alimony to coerce that payment and thus afford an effective remedy by which the child may be cared for and also the chancery court has power to issue execution, garnishment and other like remedies to enforce its judgment. It will be noted from the decree of the chancellor in the divorce suit and the bill and service of process on the defendant as shown by the record that the chancery court had jurisdiction of the defendant and full power to inquire into the matter and provide an effective support for the child as well as the mother of the child. It will also be noted that the chancellor reserved the power in the decree to modify or change the amount and terms of support which either party could have applied for on the remarriage of the mother of the child which would have relieved the appellant of the support money so far as the part designed for the wife was concerned. A decree of divorce and alimony was rendered at the April 1944 Term and the wife, after securing the divorce, remarried the following August. Neither the appellant nor his former wife applied for any modification of the decree. The chancery court on application had the power to modify the decree and make it relate back to the date of the woman's remarriage. Considering this power of the chancery court under the Mississippi Constitution, and considering the fact that the chancellor still had jurisdiction and the decree was still in force; not being barred by limitation statutes, could the grand jury or the circuit court or even the legislature deprive the chancery court of its power and control over the person of the appellant by a proceeding in the circuit court which placed the appellant beyond the power of the chancery court to exercise its constitutional jurisdiction? Under Section 2087 Code 1942 no provision is made by which the father's duty to support his child could be secured to the child or those having custody and control of the child. In the absence of a chancery court's jurisdiction under Section 159 of the Constitution, the circuit court could clearly do what it did do in this case provided the proof covered the elements of the statute defining the crime, but neither Section 2087 nor Section 2050 Code 1942 provide any method of actually supporting the child and during the term of imprisonment in the State Penitentiary the person violating the statute could not get any of his earning value or capacity to make money for the support of the child. All three of the sections above cited have for their object the compelling of a parent to support his child as is his legal duty. The question then for the decision in this case, which is different from any of the cases that I have considered or observed, is whether the court should not, when it appeared in evidence that the chancery court still had jurisdiction of the support of the child, and effective power to enforce its decree, have suspended proceedings under the indictment until the parties applied to the chancery court for appropriate relief and appropriate coercion of the appellant to afford that remedy. I say this without any sympathy for the appellant and with the realization that the small amounts which he gave toward the support of the child were wholly inadequate and that the appellant should be compelled to provide for such support by any effective remedy which would secure to the child its support. The appellant, in my judgment, was grossly, not to say wilfully and contumaciously, in defiance of the decree of the court. Just why the mother of the child and her second husband did not apply to the chancery court to exercise its coercive power and compel the support I do not know. Where there is an effective remedy for the support of the child, the public policy of the State, it appears to me, would be that the courts should favor that power which will secure to the child the things necessary for its comfortable living measured by the capacity of the parent to furnish the elements of support. Suppose, for instance, that there was a child without parents or relatives who would or could support it. Could any agency of the legislative department divest the chancery court of its constitutional jurisdiction and legal duty when applied to, to continue its power of coercion? Manifestly, the law does not contemplate that the appellant should be sent to the Penitentiary and deprived of his ability to support and it is not contemplated that the chancery court should reach into the Penitentiary and take charge of the prisoner. Statutes and constitutions are designed to secure justice to minors in necessitous circumstances or in destitute conditions. I present these questions to the court for its consideration; being somewhat embarrassed in doing so by the fact that ordinarily this office would try to sustain, where it is not otherwise provided by law, all legitimate arguments for upholding the judgment of the circuit court. The Supreme Court has said, however, in effect, that the duty of a prosecuting power is to secure right and fairness to all defendants and only prosecute in accordance with legal standards. I fully realize that this court will exercise its own judgment in regard to the situation before it. My only desire is to call the attention of the court to the situation here which I think is without precedent in any former case.
The appellant contends earnestly that there was a failure to prove the necessary elements to make out the crime in the court below and that the proof does not show that the child was in destitute and necessitous circumstances. That the indictment charges that the appellant deserted the child and submitted instructions bearing thereon and that there was, legally, no desertion within the meaning of that term in the present case. The decree of the chancery court awarded the custody of the child to the mother and did not provide therein any right on the part of the father to have the custody or control of the child. That this was a lawful deprivation of the right to be with the child and deprived him permanently of the custody and control of the child, and therefore, made it impossible for the appellant to desert the child and that the element of desertion in the statute had no place of operation in the present case and should not have been embraced in the instructions bearing on the case. The words "in destitute or necessitous circumstances" are the gist of the offense because it would not be an offense under Section 2087 without the use of these words considered in their proper meaning under the law. These terms were considered in the case of Moorman v. State, 129 Miss. 864, 93 So. 368, in which case it was held under Section 1, Chapter 212, Laws of 1920 — "before a conviction can be had, it must be shown beyond a reasonable doubt that the desertion was wrongful, and that the deserted ones were left in destitute or necessitous circumstances; that is, left in extreme want or without means of securing the reasonable actual necessities of life." On page 868 of the Mississippi Report it is said: "The act of the legislature here involved was intended to embrace and remedy the specific evil of wrongful desertion, when such desertion would leave the wife and children in destitute or necessitous circumstances; and with that purpose the severe penalty of imprisonment in the penitentiary was imposed. It is our opinion that the meaning of the law with reference to destitute and necessitous circumstances is that the wife or children must have been left in a condition of extreme want — without possessions or resources from which the actual necessaries of life could be obtained or realized. We do not think, however, it is necessary for conviction to show that the deserted ones were in dire poverty and distressful want; but, in order to come within the meaning of the statute, it must appear that they are substantially destitute or without means of securing the reasonable necessities of life, and unless the proof establishes this condition the offense is not committed under the law." These words as used in the statutes are defined in 12 Words and Phrases, under headings "Destitute and Indigent Circumstances" and "Destitute or Necessitous, Destitute Persons, Circumstances" and among the decisions there given is the Moorman v. State case, supra. In Horton v. State, 175 Miss. 687, the statute here involved was discussed and dealt with.
In Page v. State, 160 Miss. 300, it was said that wilful neglect or refusal to support children means neglect or refusal with stubborn purpose and without justifiable excuse. It was held in syllabus 3: "Burden of proving that wilful neglect or refusal to support children was excusable or justifiable is not on defendant, not being defensive matter (Code 1930, Sec. 861)." In syllabus 4 it was held: "Under foregoing rule, state must convict on testimony showing guilt, not on the failure of the defendant to show his innocence. In syllabus 5 it was held: "Burden of proof in criminal case is on defendant only in respect to independent exculpatory fact."
It there appears that the burden was on the State to prove the necessitous circumstances within the meaning of these terms in the statute. In the course of the examination of the grandmother of the child she was asked as to whether the child had appropriate medical attention and answered — "From us she did". Asked as to whether appellant had furnished medical aid, she answered that he had not. It also appeared in evidence that Mr. Kelly, second husband of the mother of the child, had listed it as a dependent in his hospital insurance policy. It appears from the testimony of both Mrs. Kelly and her mother that the appellant had neglected the child and furnished only trifling amounts towards its support. It appears that the child had been cared for but just what care and attention was given it was not clearly brought out. Under the law, the father is primarily liable for the support of the child. If he is unable to do so or does not do so the duty also rests upon the mother to furnish the child necessaries. It appears in the record that Kelly married the mother of the child shortly after the divorce and alimony decree in 1944. Where a man marries a woman with children too young to earn their support (16 years of age) he impliedly obligates himself to support the child if the child has no means available for its own support because he is entitled to the service of the woman he marries and is under no obligation to pay the wife for her service except such support and comfort as the law implies and it would be inconceivable that a child of tender years could not effect support if necessary from the step-father. It appears to me that the State should have developed the financial condition and ability of the mother to support the child as she had exclusive custody of the child. If the child was, in fact, in comfortable circumstances it would not come within the definition of destitute and necessitous circumstances within the meaning of that statute. I submit in this connection that if the mother and grandmother and step-father of the child were not in a position to care for the child and give it adequate support which it should have had for its health and comfort and education it should have been proved. I submit for the court's decision in this case the question as to whether destitute and necessitous circumstances is to be determined merely by the father's ability and neglect or refusal to furnish means for the support of the child and whether the present facts make out a case under Section 2087 Code 1942.
The indictment in this case is drawn under Section 2087, Code of 1942, which provides that "Any parent who shall desert or wilfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of 16 years, leaving such child or children in destitute or necessitous circumstances, shall be guilty of a felony and on conviction thereof, shall be punished by a fine of not less than twenty-five dollars, nor more than five hundred dollars, or by imprisonment in the penitentiary not exceeding two years, or both, in the discretion of the court."
Upon the return of the indictment against the appellant, T. Webber Williams, the case was transferred from the circuit court to the county court for trial, where the accused was convicted and sentenced to serve a term of eighteen months in the state penitentiary. From that judgment the appeal was taken direct to this Court under the provisions of Section 1616, Code of 1942.
(Hn 1) The indictment does not charge the offense in the alternative, as could have been done under the above quoted statute, but it charges that defendant "did unlawfully, wilfully and feloniously desert, neglect and refuse to provide for the support and maintenance" of the defendant's child, Brenda Joyce Williams, seven years of age. Under the indictment and in the instructions to the jury in the county court, the State assumed a greater burden than was necessary by requiring the jury to believe beyond every reasonable doubt that the defendant had both deserted and refused to provide for the support and maintenance of his said child. Then, too, there was no proof that he had deserted his child, but such proof as he was permitted to offer as to the facts and circumstances under which he failed to live with and support his child tended to prove that he was kept away from the child while it and its mother resided with the maternal grandmother, and that he was kept away from it by repeated personal assaults committed on him by his brother-in-law. We are of the opinion that it was error to exclude this testimony in view of the fact that the indictment charged that he both deserted and failed to provide for the support and maintenance of the child, and the case was submitted to the jury upon that theory. (Hn 2) Moreover, while the prosecution was permitted to introduce the divorce proceedings brought by the child's mother against the accused, showing that a decree of divorce was rendered in favor of the wife in April 1944, and to introduce other proof tending to show that he had neglected and failed to support and maintain the child for a period of nearly four and a half years, the accused was not permitted to show the surrounding facts and circumstances in regard to his alleged desertion of the child and of his failure to support and maintain it, except during the period of two years prior to the return of the indictment, upon the theory that under Section 2437, Code of 1942, the prosecution was confined by such statute of limitations for what he had done or failed to do during the said two-year period. We think that the testimony offered by the prosecution was competent, since the alleged offense is a continuing one under the holding of this Court in the case of Horton v. State, 175 Miss. 687, 166 So. 753, and that it was also competent for the accused to offer any evidence in defense of the charge of desertion and as to whether he had wilfully neglected and refused to support and maintain the child during the 4 1/2 year period complained of by the state.
In the case of Page v. State, 160 Miss. 300, 133 So. 216, (Hn 3) the burden of proving that there had been a willful neglect or refusal to support and maintain the child was upon the state, and not on the accused to prove that his action was excusable or justifiable in such neglect or refusal. Cf. Clark v. State, 181 Miss. 455, 180 So. 602.
The decree of divorce rendered on April 25, 1944 awarded the permanent care and custody of the child to its mother, and further provided that the defendant should pay to her, instead of to the clerk of the court, the sum of $60 per month as alimony for the support of both the wife and child; and the record discloses that she married again in August 1944, and that he was not, therefore, due to pay alimony thereafter for the support of his wife and child, and would have been entitled to be relieved of the payment of a part of the alimony allowed if he had made proper application to the chancery court in that behalf.
It is suggested by the Assistant Attorney General that since under Section 159 of the State Constitution the chancery court is vested with full jurisdiction in matters of divorce and alimony, and such court had acquired jurisdiction in the matter prior to the commencement of this prosecution, any further proceedings in this criminal case should have been suspended in order that the chancery court might exercise its constitutional jurisdiction of compelling the performance of its decree and thereby better promoting the welfare of the child than could be by the imprisonment of its father in the state penitentiary.
However, the Constitution also vests in the criminal courts full jurisdiction for the prosecution of felonies, and a conviction in the case of Horton v. State, supra, was upheld even though the opinion of the court in that case discloses that the prosecution was based upon a failure to support and maintain the child where he failed to contribute support, except under compulsion by the chancery court. (Hn 4) We are, therefore, not justified in holding that the county court should be denied the right to proceed with a new trial of this cause on remand. We merely reverse and remand the cause in order that the defendant may be allowed to show the full facts and circumstances as to whether he has either wilfully deserted or wilfully neglected and failed to provide for the support and maintenance of the child at any time prior to the return of this indictment against him.
(Hn 5) Moreover, it is incumbent upon the prosecution to show beyond every reasonable doubt that the child was left in destitute or necessitous circumstances, the proof in the record now before us only tending to show that it was in destitute or necessitous circumstances so far as any contribution made to it by the defendant is concerned.
Then, too, we think that some of the rulings in the trial court in the presence of the jury, when sustaining the objections made to the testimony offered by the defendant, were calculated to be prejudicial to him as comments upon such testimony.
Reversed and remanded.