Nobles v. State, 39558
| Decision Date | 07 February 1955 |
| Docket Number | No. 39558,39558 |
| Citation | 223 Miss. 24,77 So.2d 674 |
| Parties | Willie B. NOBLES v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Claude E. Conner, Columbia, for appellant.
J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.
This is an appeal from a conviction of the crime of deserting, neglecting, and refusing to support minor children, as denounced by Mississippi Code of 1942, Section 2087.
Appellant, her husband, and children lived near Baxterville in Lamar County. In 1950, appellant and her husband, W. E. Nobles, father of the minor children, signed up for welfare payments, and thereafter appellant received from $20 to $40 per month welfare aid until the early part of 1953, when this aid was cut off because appellant was not staying at home with the children. In January, 1951, appellant, pursuant to an agreement with her husband that he would stay home and take care of the children while she worked, took a job at a garment plant in Columbia. She held this job, which paid from $150 to $200 per month, until February, 1953. Some time prior to September 22, 1952, appellant separated from her husband and thereafter lived away from the home; and on said date filed suit against her husband for a divorce on the grounds of habitual cruel and inhuman treatment. She was granted a divorce on said grounds on February 22, 1954. The custody of the children, which appellant sought in her bill for divorce, was not adjudicated at that time, pending a report from the welfare department. Later W. E. Nobles filed a petition for custody of the children, on which the chancery court, on July 8, 1954, entered a decree awarding custody of the children to W. E. Nobles, and enjoining the appellant from interfering with W. E. Nobles' custody and from visiting the children in their home, and providing for appellant to see the children under arrangements with one neighbor and W. E. Nobles. Appellant made proof that she was financially unable to attend the last hearing involving the custody of the children and it was tried in her absence, although her attorney was present. The proof on the part of appellant showed that after she lost her job with the garment plant in February, 1953, which was due to closing a part of the plant, that thereafter she did not have regular employment; that she worked at several cafes with the highest pay of $20 per week, and this not regularly; that from about the first of 1954, she had been working in a boarding house for her keep, with occasional jobs in a cafe.
The indictment was returned January 26, 1954, charging that the appellant 'did then and there in said county and state, wilfully, unlawfully, and feloniously desert, neglect and refuse to provide for the support and maintenance of said children, leaving said children in destitute and necessitous circumstances.' The date laid in the indictment was July, 1953.
Section 2087 of the Code of 1942 state the offense therein denounced in three alternatives. See Horton v. State, 175 Miss. 687, 166 So. 753. These alternatives are joined in the indictment of appellant by use of the conjunction 'and'. The State did not charge the accused in the alternative, as it could have done, and thereby the State assumed the burden of proving the three alternatives as set out in the opinion in Horton v. State, supra. Williams v. State, 207 Miss. 816, 43 So.2d 389. Appellant offered proof to negative the charge of desertion by showing that she was forced to leave the home where her children and husband lived because of mistreatment by the husband. The lower court refused to admit such evidence, and this action is assigned as error. Inasmuch as desertion was part of the crime charged, this was error. The lower court did allow appellant to testify that she was threatened once with a knife and another time with a gun and was otherwise mistreated by her then husband; but would not allow the oldest daughter to testify at all on that issue. Under this indictment, the appellant should have been permitted to introduce any testimony she had tending to show she was justified in leaving the husband and children. See Williams v. State, supra.
Appellant assigns as error the admission of testimony tending to show that she neglected the children and failed to provide for their support and maintenance after the date laid in the indictment and after the indictment was returned. The offense with which she was charged is a continuing one. Horton v. State, supra. 'Since the offense is a continuing one, as discussed supra Sec. 92, evidence of accused's conduct or neglect of the child before and after the time charged is admissible to show intent and motive, and as tending to show the commission of the offense charged, and as to whether or not it was committed at or about the time charged.' 67 C.J.S., Parent and Child, Sec. 97, page 840. The lower court properly...
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Lenoir v. State
...failed to prove desertion the case must be reversed under the authority of Williams v. State, 207 Miss. 816, 43 So.2d 389, Nobles v. State, 223 Miss. 24, 77 So.2d 674, and Whittington v. State, 228 Miss. 550, 88 So.2d 115, in which cases we held that where the indictment charges the several......
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Whittington v. State
...not in the alternative, as permitted by the statue, the State was required to prove each of the three stated elements. Nobles v. State, Miss.1955, 77 So.2d 674, 675; Williams v. State, 1949, 207 Miss. 816, 828, 43 So.2d 389. Because the offense is a continuing one, evidence of accused's con......