Summary
In Page v. State, 160 Miss. 300, it was said that wilful neglect or refusal to support children means neglect or refusal with stubborn purpose and without justifiable excuse.
Summary of this case from Williams v. StateOpinion
No. 29422.
April 6, 1931.
1. PARENT AND CHILD. Neglect or refusal to provide for support and maintenance of children, to constitute criminal offense, must be willful ( Code 1930, section 861).
Laws 1928, Ex. Sess., chapter 89, section 1 (Code 1930, section 861), provides that any parent who shall 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, shall be guilty of a felony.
2. PARENT AND CHILD.
"Willful" neglect or refusal to support children means neglect or refusal with stubborn purpose and without justifiable excuse (Code 1930, section 861).
3. PARENT AND CHILD.
Burden of proving that willful neglect or refusal to support children was excusable or justifiable is not on defendant, not being defensive matter (Code 1930, section 861).
4. CRIMINAL LAW. Burden is on state to prove every essential element of crime charged.
Under foregoing rule, state must convict on testimony showing guilt, not on the failure of the defendant to show his innocence.
5. CRIMINAL LAW.
Burden of proof in criminal case is on defendant only in respect to independent exculpatory fact.
APPEAL from circuit court of Neshoba county; HON. D.W. ANDERSON, Judge.
A.L. Mars, of Philadelphia, for appellant.
The law does not require of this defendant any more than he was able to do toward the support of his children. The defendant's defense to the indictment in this case was that he had supported and maintained his children as best he could and the state fails to even attempt to contradict it. A father is only required to support his children in accordance with his means and his duty in this regard only requires him to support them as far as he is able so to do.
Vance v. State, 61 So. 305.
Eugene B. Ethridge, Assistant Attorney-General, for the state.
The fact that there was ill feeling between appellant and his wife did not relieve him of the statutory responsibility to support and properly provide for his children, nor would it tend to show that he was denied the opportunity of meeting the statutory requirement. It must be shown, and it was shown by the state, that appellant wilfully neglected to provide for his children under the age of sixteen years, leaving them in destitute and necessitous circumstances.
The state having proved on the trial in the lower court the essential ingredients of the crime for which appellant was indicted; the record showing that appellant wilfully neglected to provide for his children, and that as a result of said neglect they were left in necessitous circumstances without proper clothing and sufficient food, it cannot be reasonably contended that any doubt may be resolved in favor of appellant.
Appellant was indicted at the February, 1930, term of the circuit court of Neshoba county for a violation of section 1, chapter 89, Laws (Ex. Sess.) 1928, section 861, Code 1930, which provides as follows: "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 sixteen years, leaving such child or children in destitute or necessitous circumstances, shall be guilty of a felony." The proof in behalf of the state shows that for the period beginning in the month of July, 1929, and extending to the month of February, 1930, the appellant, the father of the children, did neglect to provide for their support and maintenance, and that they were thereby left in destitute or necessitous circumstances, but beyond the fact of neglect there was no proof.
The terms of the statute are not fulfilled, however, by allegation and proof of neglect, but the further essential element in that respect is that the neglect shall be willful. That word in a statute such as this means that the neglect or refusal was with a stubborn purpose, and without justifiable excuse. Ousley v. State, 154 Miss. 451, 456, 122 So. 731. The state seems to concede this, but contends that excuse or justification is defensive, and that the burden in that respect was on appellant. No authority is cited by the state for that position, and we are of opinion that it is not tenable under this statute.
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. Owens v. State, 80 Miss. 499, 509, 32 So. 152; Hampton v. State, 99 Miss. 176, 186, 54 So. 722. This is not a case of a separate statutory defensive exception, or of a defense clearly and expressly placed by the statute on the defendant, or of a defense which involves substantive matter distinct and separable from the elements necessary to be charged in the indictment. Bennett v. State, 100 Miss. 684, 56 So. 777. These rules are sometimes thus summarized: The burden of proof in criminal trials can be on the defendant only in respect to "an independent exculpatory fact."
Inasmuch as the evidence failed to show that the neglect was willful, which is to say that it was with a stubborn purpose and without justifiable excuse, the judgment must be reversed and the case remanded for a new trial.
Reversed and remanded.