Horton v. State
| Decision Date | 30 March 1936 |
| Docket Number | 32010 |
| Citation | 166 So. 753,175 Miss. 687 |
| Court | Mississippi Supreme Court |
| Parties | HORTON v. STATE |
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).
HON THOS. H. JOHNSTON, Judge.
APPEAL from circuit court of Itawamba county HON. THOS. H. JOHNSTON, Judge.
E. S. Horton was convicted of child desertion, and he appeals. Affirmed.
Affirmed.
I. L. Shield, 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. Corm, 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.
To continue reading
Request your trial
-
Knowles v. State
...the desertion occurred in 1931 and the defendant was not charged until 1936." Shook, 697 So.2d at 1163 (citing Horton v. State, 175 Miss. 687, 691-92, 166 So. 753 (1936)); see also Kelley v. State, 218 Miss. 459, 67 So.2d 459, 460 (1953) (statutory offense for willful failure to provide for......
-
Morris v. State
...218 Miss. 459, 67 So.2d 459, 44 A.L.R.2d 881 (1953) (desertion or failure to support children is a continuing offense); Horton v. State, 175 Miss. 687, 166 So. 753 (1936) (same). Where a small child is threatened with harm to himself or herself, or family if he or she tells, this tolls Miss......
-
Lenoir v. State
...Section 2087 in the conjunctive, the State thereby assumed the burden of proving all three alternatives (as set out in Horton v. State, 175 Miss. 687, 166 So. 753). If we follow Williams, Nobles and Whittington, appellant would be entitled to a reversal, for desertion was not There is confl......
-
Thomas v. State
...the gist of the offense charged is wilful failure to provide for the support and maintenance of minor children, and cites Horton v. State, 175 Miss. 687, 166 So. 753, which was given as authority in Lenoir v. State, supra, for the rule that under an indictment upon Sec. 2087, Miss.Code of 1......