Williams v. State, 37332
| Decision Date | 12 December 1949 |
| Docket Number | No. 37332,37332 |
| Citation | 207 Miss. 816,43 So.2d 389 |
| Parties | WILLIAMS v. STATE. |
| Court | Mississippi Supreme Court |
Easterling & Easterling, Laurel, for appellant.
Greek L. Rice, Attorney General, Geo. H. Ethridge, Jackson, for appellee.
The indictment in this case is drawn under Section 2087, Code of 1942, which provides that 'Any parent who shall desert or wilfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of 16 years, leaving such child or children in destitute or necessitous circumstances, shall be guilty of a felony and on conviction thereof, shall be punished by a fine of not less than twenty-five dollars, nor more than five hundred dollars, or by imprisonment in the penitentiary not exceeding two years, or both, in the discretion of the court.'
Upon the return of the indictment against the appellant, T. Webber Williams, the case was transfered from the circuit court to the county court for trial, where the accused was convicted and sentenced to serve a term of eighteen months in the state penitentiary. From that judgment the appeal was taken direct to this Court under the provisions of Section 1616, Code of 1942.
The indictment does not charge the offense in the alternative, as could have been done under the above quoted statute, but it charges that defendant 'did unlawfully, wilfully and feloniously desert, neglect and refuse to provide for the support and maintenance' of the defendant's child, Brenda Joyce Williams, seven years of age. Under the indictment and in the instructions to the jury in the county court, the State assumed a greater burden than was necessary by requiring the jury to believe beyond every reasonable doubt that the defendant had both deserted and refused to provide for the support and maintenance of his said child. Then, too, there was no proof that he had deserted his child, but such proof as he was permitted to offer as to the facts and circumstances under which he failed to live with and support his child tended to prove that he was kept away from the child while it and its mother resided with the maternal grandmother, and that he was kept away from it by repeated personal assaults committed on him by his brother-in-law. We are of the opinion that it was error to exclude this testimony in view of the fact that the indictment charged that he both deserted and failed to provide for the support and maintenance of the child, and the case was submitted to the jury upon that theory.
Moreover, while the prosecution was permitted to introduce the divorce proceedings brought by the child's mother against the accused, showing that a decree of divorce was rendered in favor of the wife in April 1944, and to introduce other proof tending to show that he had neglected and failed to support and maintain the child for a period of nearly four and a half years, the accused was not permitted to show the surrounding facts and circumstances in regard to his alleged desertion of the child and of his failure to support and maintain it, except during the period of two years prior to the return of the indictment, upon the theory that under Section 2437, Code of 1942, the prosecution was confined by such statute of limition for what he had done or failed to do during the said two-year period. We think that the...
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...to show beyond every reasonable doubt that the child was left in destitute or necessitous circumstances." Williams v. State, 207 Miss. 816, 830, 43 So.2d 389, 391 (1949), overruled on other grounds by Lenoir v. State, 237 Miss. 620, 115 So.2d 731 (1959). The State has the burden of proving ......
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