STATE
v.
Donald M. FERGUSON.
No. 437.
Supreme Court of North Carolina.
April 18, 1956.*199 I. Weisner Farmer and W. H. Yarborough, Jr., Raleigh, for defendant, appellant.
William B. Rodman, Jr., Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.
BOBBITT, Justice.
The judgment of nonsuit entered by Judge Frizzelle at December Criminal Term, 1954, of Wake Superior Court, when defendant was on trial on the warrant of 22 April, 1954, was not a bar to a subsequent prosecution of defendant for willfully failing and refusing to support his illegitimate child. State v. Robinson, 236 N.C. 408, 72 S.E.2d 857, opinion by Winborne, J., is explicit to the effect that a judgment of nonsuit, nothing else appearing, does not constitute a negative finding on the issue of paternity; and, since G.S. § 49-2 creates a continuing offense, a second or subsequent prosecution, relating to a later period, is not barred.
When the warrant of 22 April, 1954, was issued, no criminal offense had been committed. The purported amendment of this warrant on 16 August, 1954, related solely to events after 22 April, 1954, and after 5 June, 1954, the date the child was born. Where a similar amendment was attempted, Denny, J., in State v. Thompson, 233 N.C. 345, 64 S.E.2d 157, 159, said: "* * * a warrant may not be amended so as to charge the defendant with an offense which was committed, if committed at all, after the warrant was issued."
It is further noted that the warrant of 22 April, 1954, when issued, referred only to defendant's failure to provide medical care incident to pregnancy. "The failure to provide for the mother and to pay expenses incident to the birth of the child are not criminal offenses. These are matters the court may provide for and require upon conviction." Winborne, J., in State v. Stiles, 228 N.C. 137, 44 S.E.2d 728, 730. And, both before and after the purported amendment of said warrant, the word "willfully" was used in relation to the begetting of the child rather than in relation to providing either medical care or support. State v. Clarke, 220 N.C. 392, 17 S.E.2d 468.
The conclusion reached is that the judgment of nonsuit was properly entered by Judge Frizzelle at December Criminal Term, 1954, of Wake Superior Court. Indeed, while the evidence heard by Judge Frizzelle is not before us, uncontradicted evidence in the trial before Judge Bickett was to the effect that the case was not tried out before Judge Frizzelle but was stopped and nonsuit entered so that a new warrant could be taken out.
Although the judgment of 10 February, 1955, of the Domestic Relations Court was erroneous and the view taken by Judge Williams was correct, as to the soundness of defendant's plea of former jeopardy, we are confronted by a fatal jurisdictional defect. The jurisdiction of the superior court, if any, as to the warrant of 17 January, 1955, rested solely on the State's appeal from the judgment of 10 February, 1955. If the State had no right to appeal therefrom, said judgment of 10 February, 1955, although erroneous, was a final judgment as to further prosecution on the warrant of 17 January, 1955. It is noted that the trial at November Criminal Term, 1955, was on the warrant of 17 January, 1955.
*200 Whether the State could have prosecuted the defendant at that term on a bill of indictment is a question that does not arise on this record. In the absence of waiver thereof as provided by statute, a person charged with the commission of a misdemeanor cannot be tried initially in the superior court except upon an indictment found by a grand jury. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283; State v. Norman, 237 N.C. 205, 74 S.E.2d 602.
Our statute provides that an appeal to the Supreme Court or superior court may be taken by the State in the cases specified herein, and no other. G.S. § 15-179. And this Court, upon consideration of this statute, held directly in State v. Wilson, 234 N.C. 552, 67 S.E.2d 748, that the State had no right to appeal from a judgment allowing a plea of former jeopardy or acquittal.
According to the record, the judgment of 10 February, 1955, was a final judgment unconditionally allowing defendant's plea of former jeopardy. It was not a special verdict in law nor was it so denominated by the Domestic Relations Court. Hence, the State's attempted appeal therefrom did not confer jurisdiction on the Superior Court and such appeal should have been dismissed. It follows that, since the judgment of 10 February, 1955, made final disposition of the prosecution, so far as the warrant of 17 January, 1955, was concerned, all subsequent proceedings, both in the Superior Court and in the Domestic Relations Court, were void for lack of jurisdiction.
Miller v. State, 237 N.C. 29, 74 S.E.2d 513, and State v. Doughtie, 238 N.C. 228, 77 S.E.2d 642, cited in the State's brief, are authority for the proposition that a defendant may waive a defect, even a constitutional right, relating to a mere matter of practice or procedure. These cases, however, have no bearing on the State's right of appeal, the question here presented; and such right of appeal, under the circumstances disclosed, was a prerequisite to the superior court's jurisdiction.
While the vicissitudes of this particular case up to now suggest that a final determination is desirable, such final determination must be deferred until it can be made in accordance with law.
While the prosecution on the warrant of 17 January, 1955, was terminated by said judgment of 10 February, 1955, and the judgment from which this appeal is taken must be vacated, decision here is not a bar to further prosecution of defendant for willfully failing and refusing to support his illegitimate child, if the State elects to proceed under a new criminal accusation and process.
Judgment vacated.
JOHNSON, J., took no part in the consideration or decision of this case.