STATE
v.
WILSON.
No. 505.
Supreme Court of North Carolina.
November 28, 1951.*749 Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State, appellant.
Wade H. Sanders for defendant, appellee.
ERVIN, Justice.
Since the law looks at substance rather than form, the misnaming of the defendant's plea cannot blot out the reality that Judge Sink sustained a plea of former acquittal. He evidently concluded the plea to be good on the theory that an inspection of the two indictments disclosed that the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first. State v. Hicks, 233 N.C. 511, 64 S.E.2d 871.
The validity of such conclusion cannot be reviewed by us, for the very simple reason that the State cannot appeal from an order sustaining a plea of former acquittal. S. v. Lane, 78 N.C. 547.
The right of the State to appeal to the supreme court from adverse rulings of the superior court or to the superior court from adverse rulings of an inferior court is governed by the statutory provision that "an appeal * * * may be taken by the State in the following cases and no other":
1. Upon a special verdict.
2. Upon a demurrer.
3. Upon a motion to quash.
4. Upon arrest of judgment.
5. Upon motion for a new trial on the ground of newly discovered evidence, but only on questions of law.
6. Upon declaring a statute unconstitutional. G. S. § 15-179, 1945 Session Laws, Ch. 701.
Appeal dismissed.
BARNHILL, Justice (concurring).
That the appeal by the State in this cause is without authority in law would seem too clear to require discussion. Even so, the judgment entered in the court below and the disposition of the appeal here may create some doubt in the minds of the solicitors of the State as to their right to prosecute for a willful failure by a defendant to support his alleged illegitimate child after he has been once acquitted. As the appeal is dismissed, discussion of, or comment upon, this question has no proper place in the majority opinion.
Concededly, what is here said is not germane to the question of the right of the State to appeal, which is the sole ground upon which the appeal is dismissed. Yet some of us are of the opinion there should be some clarifying comment on the question of the effect of the judgment entered in the court below. For this reason, I file this concurring opinion.
The first bill of indictment charges a violation of the statute, G.S. § 49-2, on or about February 5, 1951, and the second, on or aboutMarch 1949. So then, acquittal on the first bill unquestionably constitutes a bar to prosecution under the latter. The defendant having been acquitted on his trial under the first bill, he could not thereafter be prosecuted under a warrant or bill charging a willful failure to support prior to the date named therein. State v. Johnson, 212 N.C. 566, 194 S.E. 319.
But the crime created by G.S. § 49-2 is a continuing offense. Therefore, the prior acquittal may not be pleaded in bar of a prosecution under a bill which charges a violation of the statute at a date subsequent to February 5, 1951, the date named in the first bill. State v. Johnson, supra. The only prosecution contemplated under the statute is grounded on the willful neglect or refusal of a parent to support his illegitimate child. The mere begetting the child is not denominated a crime. The question of paternity is incidental to the prosecution for the crime of nonsupport a preliminary requisite to conviction. State v. Stiles, 228 N.C. 137, 44 S.E.2d 728; State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462; State v. Bowser, 230 N.C. 330, 53 S.E.2d 282. Hence a verdict of not guilty on the charge of willful nonsupport does no more than find the defendant not guilty of the crime laid in the bill. The verdict *750 could not be construed to be a verdict of not guilty of begetting the child.
It follows that the solicitor is free to prosecute for a violation of the statute subsequent to February 5, 1951, unaffected by the judgment entered in the court below, if he is so advised.