State v. . Summerlin

*180 Seawell, J. It is apparent from comparison of tbe original warrant with its final amended content that the proceeding had so substantially changed character in the Superior Court that the defendant was tried and convicted on the criminal offense of willfully failing and neglecting to support his illegitimate child, who was only one day 1 old when the warrant was issued. The suggestion that the result of the proceeding might be sustained — only as settling the paternity — is not tenable, since that is not the theory on which the case was tried. The question of paternity was incidental to the prosecution for the crime o'f nonsupport, and was considered only in connection with the plea of not guilty. It is impossible to reconcile the substantially different statements as to what the verdict was, and the Court is left in uncertainty as to what the jury took into consideration in finding the defendant guilty. It is certain, however, that the proceeding under review gathered up and rolled along without much regard for the statutory definition of the crime denounced — the willful failure of the parent to support an illegitimate child. There was included in the charge against him — and the only items that could by any stretch of imagination be considered supported by the evidence — the failure to provide for the mother and to pay the expenses incident to the birth of the child. These are not criminal offenses' — although provision for the mother and for such expenses may be required upon conviction. However, with respect to the conviction for willful nonsupport, there is no evidence that the defendant knew the child was born, or‘ even expected, until, at the instance of the prosecutrix, the hand of the law was laid upon him the day after the child was born. The record shows that the warrant was issued the day after the child was born. The prosecutrix had never notified the defendant of her pregnant condition, much less of the fact of birth or its approach. She testified, and in this is supported by her relatives, that immediately upon finding that a warrant had been issued for him, the defendant came to see her and sought to settle the matter by making such payments as might be agreed upon, and that the prosecutrix did not accept.that offer, because she had not made up her mind. The defendant, it is true, denied that he had offered any money, protesting that the accusation was false; but that is part of the evidence on which the State relies. We are safe, we think, in holding that a man cannot be criminally liable for the willful failure to support an illegitimate child one day old, of whose existence he had, upon the face of the record, no previous knowledge. It is true of all criminal procedure that a man may only be punished for that which has already transpired — never for what he may do in the future; and although he may — in a grammatical sense and as expressing his immediate intention — refuse to support a new-born illegiti *181 mate child, or make immediate provision for it, he is not punishable for the expression of the intention; but only for the overt conduct into which it has been translated. Upon the same principle, the charge must be supported by the facts as they existed at the time it was formally laid in the court, and cannot be supported by evidence of willful failure supervening between the time the charge was made and the time of trial —at least, when the trial is had, as it was here, upon the original warrant. On account of the exceedingly confused state of this statute and the practical impossibility of satisfactory construction, the Court has not always agreed as to what may be done under it; but as to what may not be done in this instance, we entertain no doubt. The motion of the defendant in arrest of judgment should have been allowed. The judgment to the contrary is Reversed.