State v. . Stiles

WiNBOBNE, J. Tbe questions of law involved on tbis appeal, as stated in brief for defendant, are (1) whether there is sufficient evidence to be submitted to tbe jury, and (2) whether there is error in tbe court’s charge to tbe jury. As to tbe first question, we are of opinion and bold tbat tbe evidence is sufficient to take tbe case to the jury on tbe charge witb which defendant stands indicted. Tbe indictment is under tbe statute referred to as “An Act Concerning tbe Support of Children of Parents Not Married to Each Other,” G. S., 49-1, which provides tbat “Any parent who willfully neglects or who refuses to support and maintain bis or her illegitimate child shall be guilty of a misdemeanqr and subject to such penalties as are hereinafter provided,” and tbat “a child within tbe meaning of tbis article shall be any person less than fourteen years of age and any person whom either parent might be required under tbe laws of North Carolina to support and maintain as if such child were tbe legitimate child of such parent.” G. S., 49-2. *140 Under tbis statute, tbis Court bas beld that in order to convict defendant, tbe burden is on tbe State to sbo.w not only that be is tbe father of tbe child, and that be bas refused or neglected to support and maintain it, but further that bis refusal or neglect is willful, that is, intentionally done, “without just cause, excuse or justification,” after notice and request for support. S. v. Hayden, 224 N. C., 779, 32 S. E. (2d), 333, and cases cited. Applying tbe provisions of tbe statute, as interpreted by tbis Court, tbe evidence offered on tbe trial below would seem to be sufficient for tbe consideration of tbe jury on tbe charge preferred against defendant. However, as to tbe second question, we are constrained to bold that there is prejudicial error in portions of tbe instructions given by tbe presiding judge to tbe jury, — tbe charge of tbe court. Among exceptions taken to tbe charge are these portions : (1) “Gentlemen of tbe jury, tbe defendant Creed Stiles is indicted under a bill of indictment charging him with bastardy, of being tbe father of tbe illegitimate child of . . ., and tbe willful failure to provide support to care for bis child, either before or after it was born.” . . . (2) “Now, we have a statute which makes it a crime for a man to have intercourse with a woman and become tbe father of an illegitimate child, but tbe Court bas said that that in itself does not constitute a crime, but the statute on which tbe State is relying, there must be shown a willful failure to provide support and pay for the expenses necessarily incurred for tbe medical attention and hospital attention when tbe child was born. Now, the word 'willful,’ when used in a statute creating an offense, means tbe act is done purposely and deliberately in violation of the law; it means an act done without any lawful justification, reason or excuse, and tbe State contends here that the defendant knew he was the father of the child, and that be admits not supporting tbe child' and admits that he has made no contribution to pay tbe medical expenses in connection with its birth, and bas not paid anything in support of the child. That part of the issue is admitted. Tbe primary question is whether the defendant is the father of tbe child, and whether tbe defendant bad intercourse with tbe prosecuting witness and as a result of that tbe child was born, so I will submit two issues.” ... (3) “And I charge you that if you find from tbe evidence, beyond a reasonable doubt, that on the occasion in question, tbe defendant had intercourse with the prosecuting witness, and that as a result of that intercourse she gave birth to tbis little child introduced in evidence, and if you further find from tbe evidence beyond a reasonable doubt that tbe defendant willfully failed to provide medical attention and failed to provide any kind of support for this child, either before or after its birth, that would constitute a violation of that statute, and if you so find from tbe evidence, beyond a reasonable doubt, it would *141 be your duty to render a verdict of guilty against the defendant as charged in the bill of indictment.” The errors, in the main, permeating these instructions are these: (a) The charge against defendant is not bastardy, or of being the father of an illegitimate child. The only prosecution contemplated under the statute is that grounded on the willful neglect or refusal of any parent to support his or her illegitimate child, — the mere begetting of the child not being denominated a crime. S. v. Dill, 224 N. C., 57, 29 S. E. (2d), 145. See also S. v. Tyson, 208 N. C., 231, 180 S. E., 85. The question of paternity is incidental to the prosecution for the crime of nonsupport. S. v. Summerlin, 224 N. C., 178, 29 S. E. (2d), 462. (b) The failure to provide for the mother and to pay expenses incident to the birth of the child are not criminal offenses. These are matters the court may provide for and require upon conviction. S. v. Summerlin, supra. As there must be a retrial for errors indicated, other errors assigned may not recur, and hence need not now be considered. New trial.