Roney v. State

• Decision Date: 13 November 1933
• Docket Number: 30736
• Citation: 150 So. 774,167 Miss. 827
• Court: Mississippi Supreme Court
• Parties: RONEY v. STATE

150 So. 774

167 Miss. 827

RONEY v. STATE

No. 30736

Supreme Court of Mississippi

November 13, 1933

Division B

1. CRIMINAL LAW.

Rule requiring laying of foundation for introduction of evidence of admissions is operative only when evidence is introduced to impeach witness other than party to litigation.

2. CRIMINAL LAW.

Party having burden of proof and duty to open case must in his opening, and before he rests in his proof, introduce all substantive evidence relied upon to establish his demand.

3. CRIMINAL LAW.

Whether evidence offered in rebuttal should have been introduced as substantive evidence rests largely in trial court's discretion.

4. CRIMINAL LAW.

Court should resolve doubt whether evidence offered in rebuttal belongs to evidence in chief in favor of reception in rebuttal, where reception will not give it undue weight opposite party would be as well prepared to meet it by surrebuttal as if offered in chief, and is given opportunity to reply by surrebuttal.

5. CRIMINAL LAW.

After state rested its case in chief in prosecution for child desertion and defendant had introduced evidence in defense admitting, in rebuttal, testimony that defendant had admitted he was father of children involved, held not error (Code 1930, section 861).

HON. W. J. PACK, Judge.

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

Hubert Roney was convicted of child desertion, and he appeals. Affirmed.

Affirmed.

B. F. Carter, of Laurel, for appellant.

In the very outset of the argument on behalf of appellant we direct the court's special attention to the fact that appellant admitted the fatherhood of the child, Charlene Roney, and that during practically all the time since the date of his separation from Grace Roney, the mother of said child, he has had the care and custody, support and maintenance of said child, and that he is not charged in the indictment with desertion of this child, but as to the two children of said Grace Roney, to-wit: Edgar and Grady, he denies most emphatically that he is the father of either one of them.

It is wholly inconceivable that any person should be convicted of deserting a child not his or her own child.

Section 861, Mississippi Code of 1930.

The rule is that the burden is on the state to prove every essential element of the crime charged; and the state must convict on testimony showing the guilt, not on the failure of the defendant to show his innocence.

Page v. State, 133 So. 216; Owens v. State, 80 Miss. 499, 509, 32 So. 152; Hampton v. State, 99 Miss. 176, 186, 54 So. 722.

Certain evidence of Mrs. Easterling was wholly inadmissible; it was not in rebuttal; no proper predicate was laid for the introduction of such testimony.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

It is a general rule of law that a child born after marriage is presumed to be legitimate, and this presumption of legitimacy is not defeated by an anti-nuptial conception.

McRae v. State, 104 Miss. 861, 61 So. 977; Herrin v. Goodman, 43 Miss. 393; Underhill's Cr. Ev. (2 Ed.), section 527; Ulmer v. State, 157 Miss. 807, 128 So. 749.

It was proper to make profert of the children to the jury, in order to show the resemblance of such children to the defendant.

Smith v. Hawkins, 93 Miss. 588, 47 So. 429; Welford v. Havard, 127 Miss. 88, 89 So. 812.

The state, in making out this case, after showing the children were born at a time when the marital status had not been dissolved annd while the husband had access to his wife, could then rely on the presumption of legitimacy until such legitimacy should be questioned. The defendant denied that the children were legitimate and Mrs. Easterling was recalled on rebuttal and stated that the defendant had repeatedly declared that he knew and acknowledged himself to be the father of these children. Without any further argument on this proposition, we submit that if there ever was a case where the state was entitled to rebuttal testimony, it was in the case at bar, under the circumstances just related.

OPINION

Griffith, J.

Appellant was convicted of a violation of section 861, Code of 1930, which is the statute which makes it a felony for a parent to desert or willfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years, leaving such child or children in destitute or necessitous circumstances. The principal defense of appellant was that the two children were not his, but were the illegitimate children of some other father; and he so testified as a witness in his own defense.

The evidence is sufficient to sustain the verdict, and we have carefully examined the several assignments of errors asserted to have been committed by the trial court, and are of the opinion that none of them are reversible under this record and that but one will require comment in an opinion. That assignment is upon the fact that after the state had rested its case in chief, and appellant had introduced his evidence in defense, the state was permitted to introduce a witness in rebuttal, which witness testified in rebuttal, over the objection of appellant, but appellant had on numerous occasions admitted to the witness that the said children were...