State v. Fitzsimmons, No. 10482

CourtSupreme Court of West Virginia
Writing for the CourtGIVEN; BROWNING
Citation73 S.E.2d 136,137 W.Va. 585
PartiesSTATE, v. FITZSIMMONS.
Decision Date25 November 1952
Docket NumberNo. 10482

Page 136

73 S.E.2d 136
137 W.Va. 585
STATE,
v.
FITZSIMMONS.
No. 10482.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 25, 1952.
Decided Nov. 25, 1952.

Page 137

Syllabus by the Court.

1. 'In a criminal prosecution the burden is on the state to prove beyond a reasonable doubt every essential allegation of the indictment.' Point 1, syllabus, State v. Murphy, 93 W.Va. 477, [117 S.E. 147].

2. Whether the State in a criminal proceeding may introduce further evidence after a defendant has rested his case is a matter within the sound discretion of the trial court, and the exercise of that discretion will rarly be cause for reversal.

3. To sustain a conviction for nonsupport of an illegitimate child the evidence must establish guilt beyond a reasonable doubt of every essential element of the crime, except that the question of paternity of the child may be established by a preponderance of the evidence.

D. Jackson Savage, Charleston, for plaintiff in error.

John G. Fox, Atty. Gen., Arden J. Curry, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

Defendant was convicted of nonsupport of an illegitimate child, by a jury of the Intermediate Court of Kanawha[137 W.Va. 586] County, and, upon writ of error to the circuit court of that county, the judgment of the Intermediate Court sentencing defendant was affirmed, except as to matter not here involved. The mother of the child, seventeen years of age at the time af the trial, testified that the child was conceived about April 16, 1949; that it was born January 10, 1950; that defendant is its father; that he has furnished nothing for its support and maintenance and, in effect, that the child was in destitute and necessitous circumstances. Defendant did not testify in his own behalf, but introduced certain evidence for the purpose of establishing that some person other than defendant could have been the father of the child. His present contentions are that the evidence fails to establish that he had

Page 138

knowledge that the child had been born and, therefore, he could not have intentionally or wilfully failed or refused to support it, and that certain errors were committed in the trial of the case, hereinafter discussed.

At the time the child was conceived its mother was living at the home of an aunt, approximately thirty miles from her own home. Shortly thereafter she returned to her home, but before doing so informed defendant of her pregnancy, and accused him of being the father of the child. Her evidence in chief, however, does not show that defendant was informed of the birth of the child prior to the time the indictment was returned in September, 1950. Neither does the evidence show that anyone, prior to the return of the indictment, requested or demanded that defendant furnish any support to the child. On rebuttal examination, however, over objection of defendant, the mother testified that she had a conversation with defendant in August, before the indictment was returned, and that she then informed defendant that the child had been born. This evidence, on motion of defendant, was stricken from jury consideration, and the jury instructed not to consider it. From these facts it seems clear that the State failed to prove that defendant wilfully failed or neglected to support the child, for if he had no knowledge of its birth the neglect could not have been [137 W.Va. 587] intentional or wilful. We think the jury would not have been warranted in assuming that defendant knew the child had been born alive merely from his knowledge of the pregnancy. Such an assumption would not conform to the duty of the State to carry the burden of proof of each essential element of the crime. 'In a criminal prosecution, the burden is on the state to prove beyond a reasonable doubt every essential allegation of the indictment.' Point 1, syllabus, State v. Murphy, 93 W.Va. 477, 117 S.E. 147. See State v. Johnson, 104 W.Va. 586, 140 S.E. 532; State v. Hunter, 103 W.Va. 377, ...

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10 practice notes
  • State v. Duell, No. 16496
    • United States
    • Supreme Court of West Virginia
    • 27 Junio 1985
    ...discretion of the trial court, and the exercise of that discretion will rarely be cause for reversal." Syl. pt. 2, State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136 (1952), overruled on other grounds, Syl. pt. 2, State v. Clay, 160 W.Va. 651, 236 S.E.2d 230 5. "Evidence of a threat made by......
  • State v. Pietranton, No. 10661
    • United States
    • Supreme Court of West Virginia
    • 23 Noviembre 1954
    ...the trial court, and the exercise of that discretion will rarely be cause for reversal.' Point 2, Syllabus, State v. Fitzsimmons, W.Va. [73 S.E.2d 136]. 9. 'It is error for the Circuit Court to refuse to set aside a verdict and grant a new trial, in a felony case, when the State fails to pr......
  • State v. Dietz, No. 18909
    • United States
    • Supreme Court of West Virginia
    • 8 Marzo 1990
    ...315 S.E.2d 574 (1983); see also State v. Oldaker, 172 W.Va. 258, 264, 304 S.E.2d 843, 849 (1983). Cf. syl. pt. 2, State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136 (1952) ("Whether the State in a criminal proceeding may introduce further evidence after a defendant has rested his case is a ......
  • Adams v. Sparacio, No. 13151
    • United States
    • Supreme Court of West Virginia
    • 22 Mayo 1973
    ...exercise of discretion is not subject to review by an appellate court unless there has been an abuse thereof. See State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136; State v. Barker, 128 W.Va. 744, 38 S.E.2d 346; and Wills v. Montfair Gas Coal Company, 104 W.Va. 12, 138 S.E. 749. See also F......
  • Request a trial to view additional results
10 cases
  • State v. Duell, No. 16496
    • United States
    • Supreme Court of West Virginia
    • 27 Junio 1985
    ...discretion of the trial court, and the exercise of that discretion will rarely be cause for reversal." Syl. pt. 2, State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136 (1952), overruled on other grounds, Syl. pt. 2, State v. Clay, 160 W.Va. 651, 236 S.E.2d 230 5. "Evidence of a threat made by......
  • State v. Pietranton, No. 10661
    • United States
    • Supreme Court of West Virginia
    • 23 Noviembre 1954
    ...the trial court, and the exercise of that discretion will rarely be cause for reversal.' Point 2, Syllabus, State v. Fitzsimmons, W.Va. [73 S.E.2d 136]. 9. 'It is error for the Circuit Court to refuse to set aside a verdict and grant a new trial, in a felony case, when the State fails to pr......
  • State v. Dietz, No. 18909
    • United States
    • Supreme Court of West Virginia
    • 8 Marzo 1990
    ...315 S.E.2d 574 (1983); see also State v. Oldaker, 172 W.Va. 258, 264, 304 S.E.2d 843, 849 (1983). Cf. syl. pt. 2, State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136 (1952) ("Whether the State in a criminal proceeding may introduce further evidence after a defendant has rested his case is a ......
  • Adams v. Sparacio, No. 13151
    • United States
    • Supreme Court of West Virginia
    • 22 Mayo 1973
    ...exercise of discretion is not subject to review by an appellate court unless there has been an abuse thereof. See State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136; State v. Barker, 128 W.Va. 744, 38 S.E.2d 346; and Wills v. Montfair Gas Coal Company, 104 W.Va. 12, 138 S.E. 749. See also F......
  • Request a trial to view additional results

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