Clark v. State

• Decision Date: 25 April 1938
• Docket Number: 33092
• Court: Mississippi Supreme Court
• Parties: CLARK v. STATE

180 So. 602

181 Miss. 455

CLARK v. STATE

No. 33092

Supreme Court of Mississippi

April 25, 1938

Division A

APPEAL from the circuit court of Forrest county, HON. W. J. PACK Judge.

John Clark was convicted of having willfully and feloniously deserted and neglected his minor children under the age of sixteen years, and of having left them in destitute and necessitous circumstances, and he appeals. Affirmed.

Affirmed.

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.

OPINION

McGehee, J..

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...