State v. Fitzsimmons, 10482
| Decision Date | 25 November 1952 |
| Docket Number | No. 10482,10482 |
| Citation | 73 S.E.2d 136,137 W.Va. 585 |
| Parties | STATE, v. FITZSIMMONS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. 'In a criminal prosecution the burden is on the state to prove beyond a reasonable doubt every essential allegation of the indictment.' Point 1, syllabus, State v. Murphy, 93 W.Va. 477, .
2. Whether the State in a criminal proceeding may introduce further evidence after a defendant has rested his case is a matter within the sound discretion of the trial court, and the exercise of that discretion will rarly be cause for reversal.
3. To sustain a conviction for nonsupport of an illegitimate child the evidence must establish guilt beyond a reasonable doubt of every essential element of the crime, except that the question of paternity of the child may be established by a preponderance of the evidence.
D. Jackson Savage, Charleston, for plaintiff in error.
John G. Fox, Atty. Gen., Arden J. Curry, Asst. Atty. Gen., for defendant in error.
Defendant was convicted of nonsupport of an illegitimate child, by a jury of the Intermediate Court of Kanawha County, and, upon writ of error to the circuit court of that county, the judgment of the Intermediate Court sentencing defendant was affirmed, except as to matter not here involved. The mother of the child, seventeen years of age at the time af the trial, testified that the child was conceived about April 16, 1949; that it was born January 10, 1950; that defendant is its father; that he has furnished nothing for its support and maintenance and, in effect, that the child was in destitute and necessitous circumstances. Defendant did not testify in his own behalf, but introduced certain evidence for the purpose of establishing that some person other than defendant could have been the father of the child. His present contentions are that the evidence fails to establish that he had knowledge that the child had been born and, therefore, he could not have intentionally or wilfully failed or refused to support it, and that certain errors were committed in the trial of the case, hereinafter discussed.
At the time the child was conceived its mother was living at the home of an aunt, approximately thirty miles from her own home. Shortly thereafter she returned to her home, but before doing so informed defendant of her pregnancy, and accused him of being the father of the child. Her evidence in chief, however, does not show that defendant was informed of the birth of the child prior to the time the indictment was returned in September, 1950. Neither does the evidence show that anyone, prior to the return of the indictment, requested or demanded that defendant furnish any support to the child. On rebuttal examination, however, over objection of defendant, the mother testified that she had a conversation with defendant in August, before the indictment was returned, and that she then informed defendant that the child had been born. This evidence, on motion of defendant, was stricken from jury consideration, and the jury instructed not to consider it. From these facts it seems clear that the State failed to prove that defendant wilfully failed or neglected to support the child, for if he had no knowledge of its birth the neglect could not have been intentional or wilful. We think the jury would not have been warranted in assuming that defendant knew the child had been born alive merely from his knowledge of the pregnancy. Such an assumption would not conform to the duty of the State to carry the burden of proof of each essential element of the crime. 'In a criminal prosecution, the burden is on the state to prove beyond a reasonable doubt every essential allegation of the indictment.' Point 1, syllabus, State v. Murphy, 93 W.Va. 477, 117 S.E. 147. See State v. Johnson, 104 W.Va. 586, 140 S.E. 532; State v. Hunter, 103 W.Va. 377, 137 S.E. 534; State v. Sharpe, 234 N.C. 154, 66 S.E.2d 655. We have not failed to consider the provisions of Code, 48-8-5, to the effect that proof of desertion of a child in destitute and necessitous circumstances constitutes prima facie evidence that such desertion is wilful. Here the evidence does more than prove destitute and necessitous circumstances. It establishes a fact that makes wilful neglect or intent to desert an impossibility.
The State also contends that it was error for the trial court to have excluded from jury consideration the evidence of the mother relating to the conversation had by her with defendant in August, before the return of the indictment, and that, having induced the error, defendant can not complain of the judgment. It must be remembered that this evidence was given on rebuttal, and that the discretion of a trial court as to what evidence is to be received on rebuttal is very broad. See McManus v. Mason, 43 W.Va. 196, 27 S.E. 293. We need not, however, determine the question of the admissibility of the evidence, for the reason that clearly the evidence could not have been properly considered by the jury, and, a fortiori, not by the court. The question of the wilful neglect of the duty to support the child was purely one for jury determination.
The mother, on cross-examination as to her evidence in chief, denied having had sexual intercourse with any person other than defendant. Defendant introduced several witnesses who testified to the effect that they had had sexual intercourse with her about the time the child was conceived. On rebuttal examination the mother was permitted again to deny such alleged acts. Defendant contends that such evidence was inadmissible on rebuttal and that the admission thereof constituted prejudicial error. We think there is no merit in the contention. We have already pointed out the broad discretion of the trial court as to what evidence may be received on rebuttal examination. We perceive no abuse of such discretion in the present case. See Weaver v. Wheeling Traction...
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