Myrick v. State, 38218

• Decision Date: 03 December 1951
• Docket Number: No. 38218,38218
• Citation: 212 Miss. 702,55 So.2d 426
• Parties: MYRICK v. STATE.
• Court: Mississippi Supreme Court

Page 426

55 So.2d 426

212 Miss. 702

MYRICK v. STATE.

No. 38218.

Supreme Court of Mississippi, Division A.

Dec. 3, 1951.

James D. Hester, Wm. S. Boyd, Jr., Laurel, for appellant.

J. P. Coleman, Atty. Gen., by Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

KYLE, Justice.

The appellant, Lewis Myrick, was indicted by the grand jury of the Second Judicial District of Jones County on a charge of having willfully and feloniously deserted, neglected and refused to provide for the support and maintenance of his four minor children, under the ages of sixteen years, leaving them in destitute and necessitous circumstances. The indictment was returned at the February 1948 term of the court. The defendant was arraigned and entered a plea of not guilty on March 6, 1951, and was tried and convicted on March 14, 1951. He was sentenced to serve eighteen month in the state penitentiary, and from that judgment he prosecutes this appeal.

The testimony of the State witnesses showed that the defendant and his wife, Liddie Ruth Myrick, were married in 1942, and that the eldest of the four children was seven years of age at the time of the trial.

C. W. Gavin, the father of Mrs. Liddie Ruth Myrick, testified that the defendant and his wife lived in a house on a small tract of land owned by the defendant's father in Jasper County during the first part of 1946. There were three children at that time. The defendant had a job in Birmingham, Alabama. Gavin learned that the wife and children were in dire need and did not have sufficient food; and Gavin went to Jasper County and moved his daughter and the three children to his own home in Jones County. The fourth child was born sometime thereafter. Gavin testified that the mother and four children resided with him in his home for a period of four or five months, and that the defendant did not visit them during that time, and so far as he knew did not send them any money for their support or furnish any clothing or food for them. Gavin stated further that so far as he knew the defendant furnished no support for the children from the time they were separated from him in 1946 until the indictment in this case was returned by the grand jury. In answer to a direct question, 'How were they supported', the witness stated that they were supported largely by himself and 'with help from neighbors, sympathetic neighbors, and some help from the Child Welfare.' Gavin stated that at the time he moved his daughter and her children to his home, they were without grocries or anything to eat and did not have a sufficient amount of clothing, but that they were well cared for and well fed while they were in his home.

After remaining in her father's home for several months, Mrs. Myrick moved into another house on an adjoining farm in Jones County, which was owned by Glover Matthews. Matthews testified that Mrs. Myrick and the children moved into the house on his place in March, 1947, and lived there about a year; that they were in great need while they lived there, and that neighbors carried groceries to them, and that they received some help from the welfare departmentf that the defendant never visited them during that time so far as he knew. Al Scott, whose wife was related to the defendant, testified that he received information in 1947 that the defendant's wife and children were in destitute circumstances, and that he and his wife carried groceries to them on several occasions. Scott stated that he saw the defendant on the streets of Laurel during that time, and that the defendant was employed for a while as upholstery man at Riley's Automobile Body Shop.

The defendant's brother and his mother and father testified as witnesses for the defendant. The brother, J. D. Myrick testified that he visited in the home of the defendant about twice a month in 1946, and that the condition of the home in which the lived and their food and clothing were about as good as any ordinary family enjoyed; that the defendant's father moved his daughter and her children to his home during the summer of 1946 while the defendant was in Birmingham; that the defendant was supporting his family at that time; and that the children appeared to be in good health. The witness stated that the defendant had carried groceries to his wife and children during the latter part of 1946 and during the year 1947, and that the defendant had sent $25 to his mother for his wife while he was in California. The defendant's mother stated that when the defendant and his family were living on his father's farm in 1946 the wife and children had plenty of vegetables and fruits and other things to eat, and that the children were healthy; that she and her husband told the defendant's wife that she had a home there as long as she wanted to stay there. The defendant's father corroborated the statements made by the defendant's mother.

Two or three other witnesses testified for the defendant as to minor details, and the defendant then testified in his own behalf. The defendant stated that he gave his wife no cause for leaving the home that he had provided for her and the children during the midsummer of 1946; that he brought food, clothing and money to them while he was working in Birmingham, and that they had the use of a good vegetable garden that belonged to his mother. On cross-examination the defendant admitted that he worked at Riley's Automobile Body Shop in Laurel during the fall of 1946, and made approximately $50 per week. He stated that he gave his wife during that time $10, $12, or $15 a week out of his earnings. He quit his job at the automobile body shop in December. His wife had him arrested and placed in jail in January, 1947, and he remained in jail five days. A few weeks later he went to California to get a job. He stated that he sent money home from California for the support of his children during the year 1947 but was unable to produce any receipts showing that he had done so.

The appellant's chief assignment of error on this appeal is that the court erred in refusing to grant the peremptory instruction requested by the appellant directing the jury to find him not guilty. And two points are argued in support of this assignment, (1) that the State wholly failed to prove a desertion by the defendant, and (2) that the State failed to prove that the children were left in destitute and necessitous circumstances. Appellant says that, according to the State's own witness, the appellant's wife deserted him and took the children with her to her father's home in the midsummer of 1946 without any justifiable cause, and that according to all of the proof the children never lacked for food, clothing and the other necessities of life. We do not think that either of the two points argued in support of the above mentioned assignment of error is well taken.

In the case of Clark v. State, 181 Miss. 455, 180 So. 602, 603, this Court said: '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.' In the case of Horton v. State, 175 Miss. 687, 166 So. 753, 754, the Court said that the...