Thomas v. State

Citation159 So.2d 77,247 Miss. 704
Decision Date20 December 1963
Docket NumberNo. 42810,42810
PartiesHenry THOMAS v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

W. S. Murphy, Ludedale, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice.

Appellant was indicted at the August 1961 term of the Circuit Court of George County for failing continously since September 30, 1960, to provide for the support and maintenance of his four minor children under the age of sixteen years. Appellant was arraigned and pled not guilty, but the date on which this occurred is not disclosed in the record. On February 5, 1963, appellant, who had no attorney to represent him, was convicted and sentenced to serve two years, the maximum penalty, in the State penitentiary. From this verdict and sentence he has perfected this appeal.

In his assignment of error appellant lists ten specific grounds. We shall discuss only those errors which we feel, after careful study of the record and pertinent authorities, merit close consideration and present appellant's strongest grounds for reversal.

Assignment of error number nine is as follows: 'The burden was on the State to prove beyond a reasonable doubt the essential elements of the indictment to sustain a conviction and when the State failed to meet this burden, the Court below erred in not entering judgment of acquittal and discharge of appellant, defendant in the Court below.'

The record discloses the following facts: Appellant was the husband of Annie Lou, who was the daughter of Larcene Miller; by said wife he had four minor children under the age of sixteen years, namely, Diane Thomas, age 12 years, Patricia Ann Thomas, age 11 years, Johnnie Lee Thomas, age 10 years, and Henrietta Thomas, age 6 years; that appellant's wife died in 1955 and at that time she, the appellant, and their aforesaid children were living with the said Larcene Miller. It appears that appellant provided for his four children up to September 30, 1960. Subsequent to this date, except for some clothes which he furnished the children at one Easter time and six dollars in cash, he has failed to provide anything for them, though he maintains otherwise. The record shows that State and Federal Welfare agencies have afforded the grandmother, the said Larcene Miller, the sum of $41 per month and commodities for the maintenance of appellant's children.

The record fails to disclose that the children have suffered for food and clothes, and shows that they have resided continuously with their grandmother and they are and have been in school, except possibly the six-year old girl. The proof shows that appellant wisely left his children with Larcene Miller and asked her to keep them after his wife died. At one time he started to take them with him to Mobile, Alabama, which was one of the three places where he claims to have unsuccessfully sought to get a job and where he lives and boards with one Wilma Henry and her husband. Nothing came of this intention except the grandmother had to clean, press and pack all of the children's clothes for the trip which never materialized. The children asked him to let them stay with their grandmother and he complied with their request.

Appellant testified further that he had lost one eye, which is true, and because of that fact none of the insurance companies would clear him for employment because if he lost his other eye it would amount to total permanent disability. He had an operation in 1958 and he had not been able to work since November 1960, except for occasional odd jobs such as unloading or loading beer from box cars, for which he was paid for such 'catching the corners' jobs six or seven dollars per box car. The jobs never lasted but one or two days a week. He testified that for twenty-six weeks he drew unemployment compensation of $12.00 per week subsequent to September 1960, but had never given his children any of this money because 'he had to eat' and pay his landlady $5.00 per week for his room. The landlady, however, denied charging him for rent and that he had paid any; that she had purchased for him between $75 and $100 worth of clothes for his children, corroborating the appellant, but she could not fix the time thereof.

Appellant testified further that he had diligently tried to get work but completely failed except for the 'piddling' jobs, which fact his landlady of Mobile, Alabama, verified. He professed to care for his children, and explained his failure to visit and be with them was because he hated to be around them and not be able to provide for them. He claimed he had made money payments but he had no receipts as proof thereof. The record shows he failed to report to the county welfare agency as he had been instructed to do, or to answer its letters and demands.

Appellant does not give the names of any persons or companies he had unsuccessfully applied to for work, but locates them in Florida, Mobile, Alabama and Jackson, Mississippi. Nor does the appellee sufficiently show that appellant is, in spite of having lost an eye and undergone an operation because of some malady, an able bodied man capable of doing common labor, or that there is work available which did not interest him.

In passing, it is confounding that for almost three years the appellant has experienced apparently little want or hardship and yet evidently has done practically no work and has received only $12.00 a week for twenty-six weeks in said three years. We have indeed been shown a mystery.

The proof offered by the State in this cause is sufficient to create an issue of fact for the jury as to whether appellant deserted, neglected and refused to provide for his minor children of the ages aforesaid, and that said offense has continued since September 30, 1960, the date of the indictment.

The foremost issue now before this Court, which was not raised in the court below, and very likely because appellant was without counsel, which he now has, and was forced to represent himself, which additional fact is now also assigned as error on this appeal and urged in appellant's brief, is the question which is found in all criminal cases, namely, did appellant feloniously commit the offense charged in the indictment and does the evidence in the case establish the guilt of the appellant beyond a reasonable doubt.

Both the State and the appellant concede that the gist of the offense with which appellant is charged...

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4 cases
  • Morgan v. State
    • United States
    • Mississippi Supreme Court
    • June 12, 1997
    ...were used. Moreover, Alexander concedes that the conversation did not affect his testimony on behalf of Morgan. In Thomas v. State, 247 Miss. 704, 712, 159 So.2d 77, 80 (1963) this Court [I]n reviewing a conviction of a crime, any doubts should be resolved in favor of the integrity, compete......
  • Dora v. State, 2005-CT-00487-SCT.
    • United States
    • Mississippi Supreme Court
    • June 12, 2008
    ...of the integrity, competence and proper performance of the official duties of the judge and prosecuting attorney," Thomas v. State, 247 Miss. 704, 712, 159 So.2d 77, 80 (1963), and the fact that the prosecutor's statement is nothing more than "a comment on defendant's failure to put on a cr......
  • Doherty v. State
    • United States
    • Mississippi Supreme Court
    • March 29, 1971
    ...unfairness which is at war with due process.' 207 Miss. at 162, 41 So.2d at 377. This position was reaffirmed in Thomas v. State, 247 Miss. 704, 159 So.2d 77 (1963) where this Court, citing Gordon v. State, 149 So.2d 475 (Miss., 1963), cert. den., 374 U.S. 852, 83 S.Ct. 1918, 10 L.Ed.2d 107......
  • Rockett v. State, 45518
    • United States
    • Mississippi Supreme Court
    • September 29, 1969
    ...a reasonable doubt under our interpretation of Mississippi Code 1942 Annotated section 2087 (1956) as reflected in Thomas v. State, 247 Miss. 704, 159 So.2d 77 (1963); Kelley v. State, 218 Miss. 459, 67 So.2d 459, 44 A.L.R.2d 881 (1953); and Page v. State, 160 Miss. 300, 133 So. 216 (1931).......

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