Opinion
No. 40061.
April 16, 1956.
1. Indictments — desertion and willful failure of father to support minor children — sufficient.
Indictment charging that defendant "did willfully, unlawfully and feloniously, desert and willfully neglect and refuse to support his minor children of names and ages as follows" was sufficient to charge that he was father of children, though, under more exact pleading, it should have charged that defendant, "being father of children" naming them and giving their ages, "did willfully desert them," etc., following language of statute. Sec. 2087, Code 1942.
2. Criminal law — same — continuing offense — evidence — as to continued neglect proper.
Offense of desertion and willful failure on part of father to support minor children is a continuing offense and, in prosecution therefor, it was proper to introduce evidence as to continued neglect of children after original desertion. Sec. 2087, Code 1942.
3. Parent and child — desertion and willful neglect to provide for minor children — evidence — sustained conviction.
Evidence sustained conviction of father for desertion and willful neglect to provide for minor children. Sec. 2087, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, Judge.
A.K. Edwards, Mendenhall, for appellant.
I. The Court erred in overruling the demurrer of the appellant to the indictment. The indictment charges that, omitting the formal parts, "Berry Fortenberry on the day of 1953 in Simpson County, State aforesaid did willfully, unlawfully and feloniously, desert and wilfully negect and refuse to support his minor chidren," etc.
II. This is a statutory crime and the indictment must affirmatively charge the essential elements of the crime, and one of the essential elements of this crime is parentage. The defendant must have begotten these children, and this indictment fails to charge this fact by the use of words of the statute. The pronoun "his" denotes possession, and not parentage.
III. It is the constitutional right of the accused, under the organic law of the nation to be informed of the nature and cause of the accusation against him. The indictment must set forth the constituent elements of the crime and every essential element of the offense must be alleged with precision and certainty. These essential elements must be alleged in positive terms and not by way of recital or mere legal conclusions, unaided by intendment or inference. Love v. State, 211 Miss. 606, 52 So.2d 470; 27 Am. Jur., Sec. 54 p. 621.
IV. Parentage is the "sine quo non" of the crime, and the indictment fails to charge this essential element.
V. The appellant was denied his constitutional right as guaranteed him under Section 26 of the Constitution of the State of Mississippi.
VI. The Court erred in permitting the State over the objection of the defendant to introduce evidence to show that the defendant was guilty of the willful desertion and the willful neglect of his children subsequent in time to the date laid in the indictment and subsequent to the return date of the indictment.
VII. Generally, on trial of criminal case, evidence of commission of other independent crimes by accused is inadmissible to show either guilt or that accused would be likely to commit the crime with which he is charged, even though it is a crime of the same nature. Kehoe v. State, 194 Miss. 339, 12 So.2d 149; Crafton v. State, 200 Miss. 10, 26 So.2d 347; King v. State, 66 Miss. 502, 6 So. 188-89; Hawkins v. State, 224 Miss. 309, 80 So.2d 1; Scarbrough v. State, 204 Miss. 487, 37 So.2d 748.
VIII. The evidence must be confined to the point in issue, and that in criminal cases, especially, the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment. Patton v. State, 209 Miss. 138, 46 So.2d 90; Raines v. State, 81 Miss. 489, 497, 33 So. 19, 20.
IX. The verdict of the jury and judgment of the Court are contrary to the law and evidence of the case and against the great weight of the reasonable evidence. Page v. State, 160 Miss. 300, 133 So. 216; Clark v. State, 181 Miss. 455, 180 So. 602; Williams v. State, 207 Miss. 816, 43 So.2d 389.
X. There is no evidence in this record to show that the defendant willfully deserted or willfully neglected and refused to provide for the support and maintenance of his children.
XI. A willful neglect and a willful refusal to provide for the support of children means a stubborn purpose without justifiable excuse. Page v. State, supra.
John H. Price, Jr., and J.R. Griffin, Asst. Atty. Generals, Jackson, for appellee.
I. The Court did not err in overruling the demurrer of the appellant to indictment. Appellant assigns as error that the indictment fails to charge that appellant, Berry Fortenberry, is related by blood to the children named in the indictment. We submit that such a charge stating affirmatively that appellant is related by blood to the children named in the indictment is entirely unnecessary and would be surplusage. The indictment very plainly states that the three minor children therein named are "his minor children," unmistakably meaning that they are the children of the appellant. Love v. State, 211 Miss. 606, 52 So.2d 470; State v. Needham, 182 Miss. 663, 180 So. 786, 116 A.L.R. 1100; Sec. 2087, Code 1942.
II. The Court did not err in permitting the State over the objection of appellant to introduce evidence to show that appellant was guilty of the willful desertion and the willful neglect of his children subsequent in time to the date laid in the indictment and subsequent to the return date of the indictment. Williams v. State, 207 Miss. 817, 43 So.2d 389; Myrick v. State, 212 Miss. 703, 55 So.2d 426; Kelley v. State, 218 Miss. 459, 67 So.2d 459; King v. State, 66 Miss. 502, 6 So. 188-89.
III. The verdict of the jury and judgment of the Court are not contrary to the law and evidence of the case and against the great weight of the reasonable evidence. Myrick v. State, supra; Williams v. State, supra; Kelley v. State, supra.
This is an appeal by Berry Fortenberry from a conviction and sentence of two years in the state penitentiary, under Section 2087, Code of 1942, for the desertion and willful neglect and refusal to provide for the support and maintenance of his four children under the age of 16 years.
The State's proof was to the effect that Fortenberry, a farmer, on September 6, 1951, before the completion of the harvest of his crop, deserted his wife, then pregnant, and his three children of tender ages, under the age of 16 years, and went to Texas. After the payment of the expenses, the wife realized only about $40.00 from the crop. The family's personal property consisted of canned fruits and vegetables, a sow, and a mule, which later died. Mrs. Fortenberry obtained a decree of divorce the following March, under the terms of which her husband was ordered to pay $40.00 a month for the support of the children. After the return of the indictment at the March 1954 term of circuit court, the case was continued on his agreement to pay the previously adjudged support money; but he actually paid only $40.00 thereon. The destitute children were supported by W.M. Smith, their grandfather, with whom they and their mother lived, and a contribution of $18.00 a month from the welfare agency. The defendant was shown to be a part-time employee of the national guard; that he drew a small pension check each month from the government; that he was able to work; and that he actually did some farm work.
The evidence for the defense was to the effect that Fortenberry went to Galveston, Texas, for an operation; that he had not been able to do any substantial work since; that he tried to get his family to come to him; and that he did not visit his children, or pay any further money toward their support because his wife's brother threatened him and said that they wanted no support from him. The State's evidence amounted to a denial of this version.
(Hn 1) The trial court overruled the defendant's demurrer, based on the contention that the indictment did not affirmatively charge that the accused was the father of the children. This action was assigned as error. While, under more exact pleading, the indictment should have charged that the defendant, being the father of children, naming them and giving their ages, did wilfully desert them, etc., following the language of the statute, yet it did charge that the defendant "did wilfully, unlawfully and feloniously, desert and wilfully neglect and refuse to support his minor children of the names and ages as follows", naming them and giving their ages. "His minor children" was sufficient to charge that he was the father of the children. Consequently the demurrer was properly overruled.
(Hn 2) The appellant contends that the court erred in permitting the State to adduce evidence as to the continued neglect and support of the children after the original desertion. This evidence was properly admitted because the offense here charged was a continuing one. Horton v. State, 175 Miss. 687, 166 So. 753; Williams v. State, 207 Miss. 816, 43 So.2d 389; Kelley v. State, 218 Miss. 459, 67 So.2d 459. See also Myrick v. State, 212 Miss. 702, 55 So.2d 426.
(Hn 3) On the disputed issue of fact, the case was properly submitted to the jury and the trial court committed no error in overruling the defendant's requested peremptory instruction.
While the motion for a new trial did not assign, as a ground therefor, that the verdict was contrary to the great weight of the evidence, and the court could therefore ignore this assignment under the authorities, too numerous to mention, yet as a matter of fact, there is no substantial basis, from a consideration of the evidence, on which to hold that the verdict was contrary to the great weight of the evidence.
Under the instructions for the defendant, the State was required to prove beyond reasonable doubt both the wilful neglect and refusal of the defendant, and also that he had the financial ability, to provide for the support of his children.
It follows that the judgment of the circuit court must be affirmed.
Affirmed.
McGehee, C.J., and Roberds, Hall and Ethridge, JJ., concur.