Evans v. StateEvans v. State
- Reporters:
- , ,
- Before:
- Jones
Booker T. Evans was indicted and convicted in the Circuit Court of the First Judicial District of Chickasaw County of feloniously deserting and wilfully and feloniously neglecting or refusing to provide for the support and maintеnance of one of his children under 16 years of age in violation of Section 2087, Mississippi Codе of 1942.
The evidence shows that on May 1,1952, the defеndant was married to one Olivia Evans, had four children, and lived in Chickasaw County. About that date his home burned. On May 12,1952, he joined the Army. His reason for joining the Army was thаt he had no job and nothing with which to support his family. At that time his wife was ill, presumably with tuberculosis, and she died around September 1952. One William Below (the brother *430оf Olivia) and liis wife took the children into their home to care for them. An allotment was first made for the wife and children bnt after she died it was reduced and paid to Below for the children. The allotmеnt was drawn from November 1952 to April 1953.
Prior to that time thе defendant had remarried. After allotments werе stopped, welfare payment were mаde for a while but such payments were then stoрped and not resumed until a few months or a year before the trial of this cause. The testimony showed that the child had no money or property of any sort and the sole means of support was the welfare payments and the kindness of his uncle, Below. According to the State’s evidenсe, the children, from 1953 to the time of this trial, were cared for by Below, part of the time as afоresaid receiving* welfare payments. Defendant was discharged from the Army in 1954. Defendant admitted thаt he and his wife both worked, although his was part time аnd there is no reasonable explanation as to why he was not working continuously, nor as to why hе did not contribute more during the time he was working.
Below testified that his home burned in 1956, and on this occasion the defendant gave him $40, and since that time had givеn an additional $10 and $6, making a total of $56 over the four years. The defendant claims that he wantеd to take his children hut Below would not let him have them. This is denied by Below and his wife. They say he never askеd for the children until after he was indicted; that then he told them he would take the children rather than go to the penitentiary.
Regardless of whether the evidence is sufficient to establish a wilful desertiоn in the beginning, it is clear that there was a jury issue as to his refusal and neglect thereafter to prоvide for the child. Under Lenoir v. State, 239 Miss. 798, 115 So. 2d 731, this would be suf*431ficient to sustain the conviction and the case is therefore affirmed.
Affirmed.
McGehee, G. J., and Kyle, Gillespie and McElroy, JJ concur.