150 So. 774 | Miss. | 1933
Appellant was convicted of a violation of section 861, Code of 1930, which is the statute which makes it a felony for a parent to 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. The principal defense of appellant was that the two children were not his, but were the illegitimate children of some other father; and he so testified as a witness in his own defense.
The evidence is sufficient to sustain the verdict, and we have carefully examined the several assignments of errors asserted to have been committed by the trial court, and are of the opinion that none of them are reversible under this record, and that but one will require *830 comment in an opinion. That assignment is upon the fact that after the state had rested its case in chief, and appellant had introduced his evidence in defense, the state was permitted to introduce a witness in rebuttal, which witness testified in rebuttal, over the objection of appellant, but appellant had on numerous occasions admitted to the witness that the said children were his children, and not those of some other father.
Appellant complains of this evidence on two grounds: First, that no predicate was laid therefor; and, second, that the evidence was not properly rebuttal, but should have been introduced by the state before it closed its case in chief. As to the first ground, appellant overlooks the fact that the rule requiring the laying of a foundation or predicate for the introduction of evidence of admissions is operative only when it is sought thereby to impeach a witness other than a party to the litigation, and does not apply when the admission is one made by the party himself. 1 Ency. Ev. 610; 16 C.J. 626, 627.
Upon the second ground: It is the general rule in this state, as elsewhere, that the party who has the burden of proof, and the duty to open the case, must in his opening, and before he rests in his proof, introduce all the substantive evidence upon which he relies to establish his demand, and the extent of that demand. The rule has an apparent, but not real, exception in those civil cases where the introduction of less than the entire of the substantive evidence in the plaintiff's behalf makes out a prima facie case, whereupon the plaintiff may rest; the burden of proceeding with the evidence being then shifted to the defendant. The general rule first aforesaid has been in some cases rigidly enforced under our decisions, when the prosecuting party omits to introduce proof clearly essential to the maintenance of his case, and seeks to supply the omission by rebuttal. See, for instance, Mock v. Hines,
There are such varieties of circumstances attending the trials of cases, which circumstances operate in so many ways upon the stated rule of procedure, so many instances arise where justice requires its relaxation, while in other cases the circumstances will be such as to demand a strict adherence to it, that appellate courts have been obliged to confide the determination of that issue largely to the discretion of the trial courts. Illinois Cent. R. Co. v. Brown,
The point raised by appellant falls within the rule just stated, and there was no error in the trial court in respect to it.
Affirmed.
