STATE
v.
SHARPE.
No. 78.
Supreme Court of North Carolina.
September 19, 1951.*656 Sanford W. Brown, William V. Burrow, Asheville, for defendant-appellant.
Atty. Gen. Harry M. McMullan, Asst. Atty. Gen. Ralph Moody, and Charles G. Powell, Jr., Member of the staff, Raleigh, for the State.
WINBORNE, Justice.
While the evidence offered by the State, as shown in the record of case on appeal in the present prosecution, is sufficient to support the finding of the jury on the issue as to paternity submitted by the court, we are of opinion, and hold that the evidence is insufficient to support the criminal charge preferred against defendant.
The charge against defendant is predicated upon the statute referred to as "An act concerning the support of children of parents not married to each other", G.S. 49-1, which provides that "Any parent who wilfully neglects or who refuses to support and maintain his or her illegitimate child shall be guilty of a misdemeanor and subject to such penalties as are hereinafter provided", and that "A child within the meaning of this article shall be any person *657 less than fourteen years of age and any person whom either parent might be required under the laws of North Carolina to support and maintain as if such child were the legitimate child of such parent". G.S. 49-2.
In order to convict a defendant under this statute, G.S. 49-2, it is held by this 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. Hayden, 224 N.C. 779, 32 S.E.2d 333, 334, and cases cited. See also State v. Stiles, 228 N.C. 137, 44 S.E.2d 728; State v. Ellison, 230 N.C. 59, 52 S.E.2d 9.
"The charge", as stated in State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462, 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 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, 233 N.C. 345, 64 S.E.2d 151.
In the light of the statute, and these decisions of this Court, applied to the evidence offered by the State, it is manifest that at the time the charge was laid, and the warrant sworn out, September 22, 1950, the evidence fails to show a willful neglect or refusal by defendant to support the child. Indeed, the evidence fails to show that at the time the prosecution was begun the amount contributed by defendant had been insufficient to support and maintain the child. He had not only contributed $25 for clothes for the child, but had given to prosecutrix $5, and she had received $4.20, the surplus of amount paid to hospital by defendant, a total of $34.20. And there is no evidence that this amount was insufficient to support and maintain the child up to that time. Thus it may be fairly contended by defendant the evidence fails to show, or to support a finding, that at the time the warrant was sworn out, he had neglected or refused to support or maintain his said child.
Thus we hold that the motion of defendant for judgment as of nonsuit is well taken, and should have been granted. This holding is without prejudice to any subsequent events in respect to conduct of defendant in his duty under the law to support his said child.
Reversed.
VALENTINE, J., took no part in the consideration or decision of this case.