STATE
v.
CHAMBERS.
No. 221.
Supreme Court of North Carolina.
October 14, 1953.*211 Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.
Whicker & Whicker, North Wilkesboro, Trivette, Holshouser & Mitchell, Wilkesboro, for defendant-appellant.
WINBORNE, Justice.
On this appeal three questions for decision are presented as to (1) denial of motions for judgment as of nonsuit, (2) alleged improper cross-examination, and (3) alleged error in the charge. However, prejudicial error is not shown.
(1) As to denial of motions, aptly made, for judgment as of nonsuit: G.S. § 49-2 declares that "Any parent who wilfully neglects or who refuses to support and maintain his or her illegitimate child shall be guilty of a misdemeanor * * *."
The only prosecution contemplated under this statute is grounded on the willful neglect or refusal of a parent to support his or her illegitimate child,the mere begetting of the child not being denominated a crime. State v. Dill, 224 N.C. 57, 29 S.E.2d 145; State v. Stiles, 228 N.C. 137, 44 S.E.2d 728; State v. Bowser, 230 N.C. 330, 53 S.E.2d 282; State v. Thompson, 233 N.C. 345, 64 S.E.2d 157; State v. Robinson, 236 N.C. 408, 72 S.E.2d 857.
The question of paternity is incidental to the prosecution for the crime of nonsupport. State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462; State v. Bowser, supra; State v. Stiles, supra; State v. Thompson, supra; State v. Robinson, supra.
Moreover, this statute, as interpreted by this Court, creates a continuing offense. State v. Johnson, 212 N.C. 566, 194 S.E. 319; State v. Bradshaw, 214 N.C. 5, 197 S.E. 564; State v. Davis, 223 N.C. 54, 25 S.E.2d 164; State v. Robinson, supra.
For full discussion of continuing offense, special reference is made to opinion by Barnhill, J., in State v. Johnson, supra. And in order to convict a defendant father under this statute, G.S. § 49-2, it is held by the court that the burden is on the State to show not only that he is the father of the child, and that he has neglected or refused to support and maintain it, but further that his neglect or refusal is willful, that is, intentionally done "without just cause, excuse or justification" after notice and request for support. State v. Sharpe, 234 N.C. 154, 66 S.E.2d 655, 657; State v. *212 Hayden, 224 N.C. 779, 32 S.E.2d 333, and cases cited. See also State v. Stiles, supra; State v. Ellison, 230 N.C. 59, 52 S.E.2d 9; State v. Thompson, supra.
The charge in the warrant or bill of indictment, as stated in State v. Summerlin, supra [224 N.C. 178, 29 S.E.2d 464], opinion by Seawell, J., "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 the wilful failure supervening between the time the charge was made and the time of trialat least when the trial is had * * * upon the original warrant." See also State v. Thompson, supra.
In the light of these principles, the evidence offered by the State, as shown in the case on appeal, is sufficient to take the case to the jury on the issue of paternity, and to support a finding by the jury, beyond a reasonable doubt, that defendant is the father of the child as charged.
And taking the evidence in the light most favorable to the State, it is sufficient to take the case to the jury and to support a finding by the jury, beyond a reasonable doubt, that defendant has failed to support the child between the date of its birth, January 27, 1953, and the date the bill of indictment was found by the grand jury, March Term, 1953. See State v. Love, N.C., 77 S.E.2d 501.
The State's evidence tends to show, and defendant admits that he has not supported the child at any time. But defendant contends that the only evidence of a demand on him for support for the child is the letter written by the prosecutrix after the birth of the child, and that there is no evidence that this letter was written before or after the bill of indictment was found.
However, the circumstances shown in the evidence in respect to this letter are sufficient to support an inference by the jury that it was written before the bill of indictment was laid. The charge relates to previous conduct of defendant, and that was what the trial was about. And the case on appeal shows that prosecutrix, under crossexamination by one of the attorneys for defendant, was shown three letters, one of which she testified was the letter she wrote defendant after the birth of her child asking support for it. And it appears that defendant admitted that he received the letter. But the letter was not offered in evidence. These circumstances support a plain inference that the letter was written before the finding of the bill of indictment.
(2) The matter of the cross-examination relates to the question the solicitor asked defendant, if the reason he did not have the blood test was because he knew the baby was his. Under the circumstances shown, the question was within the bounds of fair cross-examination. Defendant had made a motion for a blood test, and none was made. So, why not?is a reasonable and natural reaction. No question is raised as to the result of a blood test. Therefore, the legal principles relating to the purpose and value of a blood test are not relevant. Hence, in this question error is not made to appear.
(3) Now as to the charge: Numerous exceptions are taken to the charge. But a reading of the entire charge seems to present the case fairly and squarely to the jury in the light of the evidence and the applicable principles of law.
While the court did not submit written issues as in State v. Love, supra, the charge gave to the jury clear instructions in this respect.
In the judgment below, we find
No error.