Summary
In Horton v. State, 175 Miss. 687, 691-92, 166 So. 753 (1936), this Court held that child desertion is a continuing act and therefore is a continuing event and not barred by the three-year statute of limitations where the desertion occurred in 1931 and the defendant was not charged until 1936.
Summary of this case from Shook v. HopkinsOpinion
No. 32010.
March 30, 1936.
1. INDICTMENT AND INFORMATION. Parent and child.
Indictment alleging that father did willfully desert "and neglect" child under age of sixteen years, leaving it in destitute and necessitous circumstances, held to charge offense of child desertion under statute penalizing parent deserting or willfully neglecting or refusing to provide for support and maintenance of child; desertion of a child leaving it destitute implying "nonsupport," words "and neglect" being surplusage (Code 1930, section 861).
2. CRIMINAL LAW.
Offense of child desertion is a continuing one, so that prosecution therefor was not barred by three-year statute of limitations, where father deserted family more than two years before prosecution was commenced, but never returned (Code 1930, sections 861, 1194).
3. CRIMINAL LAW.
Statute of limitations does not apply to continuous offense where some portion thereof is within period, although another portion thereof is not within period of limitations (Code 1930, section 1194).
APPEAL from circuit court of Itawamba county. HON. THOS. H. JOHNSTON, Judge.
I.L. Sheffield, of Fulton, for appellant.
The testimony shows that if there was a desertion it was six or seven years previous to the date of indictment. It shows that the father and mother separated and were divorced and that a judgment for alimony was rendered against the defendant; that the wife was awarded the custody of the children and that appellant has remarried.
Therefore, there is no proof sustaining this indictment because the desertion, if any, occurred six or seven years ago and is barred by the statute of limitations and for the further reason that this indictment wholly fails to charge the essential elements of the crime as laid down in section 861, Code of 1930.
It will be observed that the very gist of the offense is the refusal to provide for the support and maintenance of the child. This is omitted from the indictment.
The only hint or inference of desertion goes back to the year 1930 and certainly is barred by the statute of limitation, but the indictment in this case charges a wilful and felonious desertion and neglect of the child. If the desertion were shown to be wilful and if it were shown to be within the period of the statute of limitations there might be some semblance of an offense under that part of the statute, but the indictment really is predicated and the proof all was intended to show a failure to provide for and support the child and yet the indictment utterly fails to charge this and the instruction given by the court fails also to mention it, and therefore I submit most respectfully that the defendant was convicted of a supposed crime unknown to the law.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is said that this prosecution is barred because the desertion, if there was one in fact, occurred in 1931 and consequently there can be no prosecution for such desertion now. Appellant apparently relies on section 1194 of the Mississippi Code of 1930 which provides that all prosecutions except those listed must be begun within two years.
However, there are at least two answers to this contention. First, section 1194 of the Code of 1930 provides: "But nothing herein contained shall bar any prosecution against any person who shall abscond or flee from justice, or shall absent himself from this state or out of the jurisdiction of the court, or so conduct himself that he cannot be found by the officers of the law, or that process cannot be served upon him."
Second, nonsupport and desertion of a child, leaving the child in destitute or necessitous circumstances, is a continuing offense and the statute does not begin to run until the circumstances have been altered or until the child reaches the age of sixteen years.
2 Wharton Cr. Law (12 Ed.), page 1856.
The statute provides three situations in the alternative, either of which would render one liable. The indictment charges the first two by its use of the conjunction "and." This is permissible.
Coleman v. State, 94 Miss. 860, 48 So. 181; State v. Clark, 97 Miss. 806, 52 So. 691; Brady v. State, 128 Miss. 575, 91 So. 277; Section 861, Code of 1930.
The evidence is amply sufficient, we think, to show that the desertion and neglect of this minor child was wilful and stubborn and that on this record the judgment should not be disturbed.
This is an appeal from a conviction for child desertion under section 861 of the Code of 1930, which reads as follows: "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."
The appellant contends: (1) That the indictment does not charge an offense under the statute; (2) that the crime, if committed, was committed more than two years before the indictment, and therefore is barred under section 1194, Code 1930; and (3) that an instruction granted the state is erroneous.
The indictment alleges that the appellant, "being then and there the father and parent of E.S. Horton, Jr., a male child under 16 years of age, did wilfully, unlawfully and feloniously desert and neglect his said child, leaving said child in destitute and necessitous circumstances."
The appellant says that the gist of the offense is a willful failure to "provide for the support and maintenance" of the children and that the indictment should have so alleged. Of course, this is the gist of the offense, but nonsupport is necessarily included in the language of the indictment which conforms, in that respect, to the statute. The statute states the offense defined by it in three alternatives:
(1) "Any parent who shall desert . . . 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."
(2) "Any parent who shall . . . wilfully neglect . . . to provide for the support and maintenance of his or her child or children under the age of 16 years, . . . shall be guilty of a felony, and."
(3) "Any parent who shall . . . wilfully . . . 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."
To desert a child leaving it destitute implies its non-support. The use of the words "and neglect" in the indictment was unnecessary and constitutes mere surplusage.
The evidence for the state discloses that the appellant was living with his wife and children in Mississippi on and prior to October 17, 1931, on which date he took his wife and children, including E.S. Horton, Jr., to the home of his wife's father, and there left them without any means for their support, and without making any arrangements therefor. He then left the state, and did not thereafter contribute to their support until shortly before the finding of this indictment on February 26, 1935, and then only under compulsion by the chancery court.
The appellant further says that the desertion under this evidence occurred in October, 1931, more than two years before the finding of this indictment, and is therefore barred by limitations. The error in this contention is that the offense defined by the statute is a continuing one, Abraham v. State, 30 Ga. App. 658, 118 S.E. 761; and "where the offense is continuous, the statute of limitations does not apply where some portion of the crime is within the period, although another portion thereof is not." 16 C.J. 225.
The instruction complained of is in the language of the indictment and is, therefore, unexceptionable.
Affirmed.