STATE of North Carolina
v.
Van Henry COFFEY.
No. 6825SC369.
Court of Appeals of North Carolina.
November 20, 1968.*41 Atty. Gen. T. W. Bruton and Staff Atty. Christine Y. Denson, Raleigh, for the State.
Ted S. Douglas, Lenoir, for defendant appellant.
FRANK M. PARKER, Judge.
For a defendant to be found guilty of the criminal offense created by G.S. § 49-2, two facts must be established: First, that the defendant is a parent of the illegitimate child in question, who must be a person coming within the definition of a child as set forth in that section; and second, that the defendant has willfully neglected or refused to support and maintain such illegitimate child. In addition, if the defendant is the reputed father, it must be shown that the prosecution has been instituted within one of the time periods provided in G.S. § 49-4. In prosecutions under G.S. § 49-2 et seq. the court is expressly commanded first to determine the paternity of the child, and "(a)fter this matter has been determined in the affirmative, the court shall proceed to determine the issue as to whether or not the defendant has neglected or refused to support and maintain the child who is the subject of the proceeding." G.S. § 49-7.
In the present case the judge of the district court found the issue of paternity against the defendant but found that no demand for support had been made upon defendant after the child's birth. In accordance with these findings the district court properly found defendant not guilty of willful failure to support his illegitimate child. Under G.S. § 49-2 the mere begetting of the child is not a crime. The crime recognized by that statute is the willful neglect or refusal of a parent to support his or her illegitimate child. "The question of paternity is incidental to the prosecution for the crime of nonsupporta preliminary requisite to conviction." State v. Ellis, 262 N.C. 446, 137 S.E.2d 840; State v. Robinson, 245 N.C. 10, 95 S.E.2d 126.
G.S. § 7A-288 provides that "(a)ny defendant convicted in district court before the judge may appeal to the superior court for trial de novo." Here, it is true the defendant was not convicted of any crime in the district court. Nevertheless he had a right to appeal to the superior court from the adverse finding of the district court on the issue of paternity. G. S. § 49-7 expressly provides "that from a finding of the issue of paternity against the defendant, the defendant shall have the same right to an appeal as though he had been found guilty of the crime of willful failure to support a bastard child." (Emphasis added.) This proviso in G.S. § 49-7 was not repealed either expressly or by implication by enactment of G.S. § 7A-288. The two statutes, when properly construed together, are not inconsistent, and the decision in State v. Clement, 230 N.C. 614, 54 S.E.2d 919, recognizing the validity of the above-quoted proviso to G.S. § 49-7, is still controlling. Therefore, there can be no question but that upon defendant's appeal from the district court, the superior court acquired jurisdiction to inquire into the issue of paternity and the defendant had the right to have this issue determined by trial de novo before judge and jury.
Defendant's appeal did not, however, bring before the superior court for trial de novo the issue of defendant's willful neglect or refusal to furnish support. That issue, insofar as the present prosecution is concerned, had already been determined in defendant's favor by the district court. From this determination the State had no right to appeal, and the defendant, by appealing the finding adverse to him on the issue of paternity, did not lose the benefit of the finding in his favor on the issue of nonsupport. It was, therefore, error for the superior court to submit the question of defendant's willful refusal to support his illegitimate child to the jury.
The issue of paternity has been established by the present case adversely *42 to defendant and cannot be re-litigated by him. State v. Ellis, supra. Since the offense of nonsupport under G.S. § 49-2 is a continuing one, a new warrant may be filed charging defendant with nonsupport, if such has occurred after the issuance of the warrant on which he has been tried. State v. Johnson, 212 N.C. 566, 194 S.E. 319.
Reversed.
BROCK and BRITT, JJ., concur.