BARNHILL, J., dissenting.
SEAWELL, J., dissenting. Proceeding on indictment charging the defendant with willful neglect and refusal to support illegitimate child begotten by him of Cora Arrington.
The facts are these:
1. The child in question was born 27 June, 1930.
2. Bastardy proceeding was instituted under C. S., 265-279, which resulted in verdict at the September Term, 1931, Madison Superior Court, establishing the paternity of the child, it being found by the jury that the defendant was the father of said child, and judgment was thereupon entered that he pay to the mother of the child the sum of $200.
3. The child and its mother lived in a house belonging to the defendant from 1930 to 1943. The mother testified, "He has never charged me any rent. . . . I never did rent from him, but I allowed he was letting me live up there on account of that child."
4. The present proceeding was instituted by indictment at the May Term, 1943, Madison Superior Court; tried at the August Term, resulted in verdict of guilty, and judgment of six months in jail, suspended on conditions, etc.
Defendant appeals, assigning errors. The case turns on whether the proceeding is barred by the lapse of time. G.S., 49-4.
The child in question was born 27 June, 1930. Its paternity was established under the old law, C. S., 265-279, at the September Term, 1931, Madison Superior Court. The present proceeding originated by indictment at the May Term, 1943, more than 13 years after the birth of the child. Under the decision in S. v. Killian, 217 N.C. 339, 7 S.E.2d 702, it would seem that the prosecution is barred.
The pertinent provisions of ch. 228, Public Laws 1933, as amended by ch. 217, Public Laws of 1939, follow: "Sec. 3. Proceedings under this Act to establish the paternity of such child may be instituted at any time within three years next after the birth of the child, and not thereafter:Provided, however, that where the reputed father has acknowledged the paternity of the child by payments for the support of such child within three years from the date of the birth thereof, and not later, then, in such case, prosecution may be brought under the provisions of this Act within three years from the date of such acknowledgment of the paternity of such child by the reputed father thereof." See S. v. Moore, 222 N.C. 356,2 S.E.2d 31.
The only "prosecution" contemplated by this legislation is that grounded on the willful neglect or refusal of any parent to support and maintain his or her illegitimate child, the mere begetting of the child not being denominated a crime. G.S., 49-2; S. v. Tyson, 208 N.C. 231,180 S.E. 85. It was held in S. v. Bradshaw, 214 N.C. 5, 197 S.E. 564, a case which arose prior to the amendment of 1939, that an indictment under this statute, instituted more than three years after the birth of the child, was properly dismissed, as the limitation was positive and unbending, and not confined to proceedings to establish the paternity of the child. Attention was directed to the "penalties as are thereinafter provided" and to the procedural provisions of the enactment, which contemplate initial findings and an order of support, subject to modification or increase from time to time, and to be enforced by such prescribed supplemental orders as the exigencies of the case may require. See G.S., 49-7-8, and S. v. Duncan,222 N.C. 11, 21 S.E.2d 822.
In consequence of this decision, the statute was amended in 1939 as above set out. The only material change wrought by this particular amendatory provision was to extend the time within which "prosecution may be brought," where the reputed father has acknowledge the paternity of the child by payments for its support within three years from the date of its birth, from "within three years next after the birth of the child" to "within three years from the date of such acknowledgment of the paternity of such child by the reputed father thereof." S. v. Killian, supra. *Page 59
It is to be noted that here the paternity of the child was established in a bastardy proceeding had under the old law, and not under the existing law. Hence, the present prosecution is a new and independent proceeding, rather than a motion in the original proceeding to enforce the order of support as contemplated by the 1933 Act. As such, it is barred by sec. 3 of the "Act concerning the support of children of parents not married to each other." Ch. 228, Public Laws 1933. See G.S., 49-1.
It results, therefore, that the motion for judgment of nonsuit will be sustained. G.S., 15-173 (C. S., 4643).
Reversed.