STATE of North Carolina
v.
Rush M. WALKER, Sr.
No. 7717SC598.
Court of Appeals of North Carolina.
February 7, 1978.*90 Atty. Gen. Rufus L. Edmisten by Associate Atty. Christopher P. Brewer, Raleigh, for the State.
*91 Ramsey, Hubbard & Galloway by James E. Ramsey and Joel H. Brewer, Roxboro, for defendant-appellant.
HEDRICK, Judge.
In North Carolina the criminal offense of child abduction is set out in G.S. 14-41 as follows:
§ 14-41. Abduction of children.If anyone shall abduct or by any means induce any child under the age of fourteen years, who shall reside with its father, mother, . . . to leave such person or school, he shall be guilty of a felony, . . ..
A provision found in the companion statute proscribing conspiracy to abduct children, G.S. 14-42, must be read in harmony with the preceding section: "Provided, that no one who may be a nearer blood relation to the child than the persons named in § 14-41 shall be indicted for either of said offenses."
It is clear, then, that at least in the absence of a custody order in favor of the mother, the father of the child taken cannot be guilty of the crime of child abduction. This rule was logically extended in State v. Burnett, 142 N.C. 577, 581, 55 S.E. 72, 74 (1906), where the Supreme Court stated that the "father's consent is a defense, the burden of which is upon the defendant." See also Annot., 77 A.L.R. 317 (1932).
Defendant first challenges his conviction for the abduction of his grandson, Rush Walker, III. In his fifth and twelfth assignments of error defendant contends that the trial court erred in failing to grant his motion for nonsuit at the close of all the evidence. He argues that the uncontradicted evidence of the State and the defendant establishes the consent of the father of Rush Walker, III.
The appropriateness of a nonsuit can be determined pursuant to well-established law in this State. The State is entitled to all inferences which can reasonably be drawn from the evidence considered in a light most favorable to the State. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). When the State's evidence is conflicting and tends to inculpate and exculpate at the same time, then the case should be submitted to the jury and a nonsuit is improper. State v. Robinson, 229 N.C. 647, 50 S.E.2d 740 (1948). "When, however, the State's case is made to rest entirely on testimony favorable to the defendant, and there is no evidence contra which does more than suggest a possibility of guilt or raise a conjecture," a nonsuit is proper. State v. Robinson, supra at 649, 50 S.E.2d at 741. The question for determination in this Court, then, is whether a jury could reasonably infer the defendant's guilt from all evidence presented by the State and the uncontroverted evidence of the defendant.
All of the evidence in the case before us tends to show that the defendant and the father of Rush Walker, III, acted in concert in taking the child from the school bus, placing him in the automobile, and leaving the school. The only inference reasonably deducible is that the defendant was acting with the consent of the child's father. Under these circumstances, we are of the opinion that the court erred in denying the defendant's motion for judgment as of nonsuit.
Defendant also challenges his conviction in Case Number 76CR2133 for the abduction of Vickie Irby. He first assigns as error the denial of his timely motions for judgment as of nonsuit. He supports these assignments of error with substantially the same arguments as advanced in the case involving the abduction of Rush Walker, III. Suffice it to say that the evidence when considered in the light most favorable to the State is sufficient to require submission of this case to the jury and to support the verdict.
By his ninth assignment of error defendant contends that the trial judge erred in failing to instruct the jury on the defense of mistake of fact. In support of this argument defendant cites evidence tending to show that defendant and his son were operating under the mistaken belief that the female child whom they allegedly abducted was Joy Walker, the granddaughter of defendant.
*92 It is an elementary principle that general criminal intent is an essential component of every malum in se criminal offense. W. Lefave and A. Scott, Criminal Law § 28, 201 (1972); State v. Welch, 232 N.C. 77, 59 S.E.2d 199 (1950). Where specific intent is not an element of the offense charged, "[a] person is presumed to intend the natural consequences of his act . . .." State v. Ferguson, 261 N.C. 558, 561, 135 S.E.2d 626, 628 (1964). Thus, an inference of general criminal intent is raised by evidence tending to show that the defendant committed the acts comprising the elements of the offense charged. State v. Ferguson, supra; State v. Chester, 30 N.C.App. 224, 226 S.E.2d 524 (1976). The presumption of intent establishes a prima facie case for the State, and if no opposing inferences are raised by the evidence, the trial judge is not required to instruct on general criminal intent. State v. Gleason, 24 N.C.App. 732, 212 S.E.2d 213 (1975). On the other hand, if an inference that the defendant committed the act without criminal intent is raised by the evidence then the presumption dissolves and the law with respect to intent "becomes a part of the law of the case which should be explained and applied by the court to the evidence in the cause." State v. Elliott, 232 N.C. 377, 378-9, 61 S.E.2d 93, 95 (1950).
An examination of the evidence presented by the defendant reveals that the general principles recited above are applicable to the present case. The defendant testified that when he took the little girl, Vickie Irby, he believed that she was his granddaughter, Joy Walker; that he discerned the true identity of the child after he and his son had driven one-half mile from the school; that upon realizing that the child was not his granddaughter, he returned to the school and let the child out of the automobile. According to this evidence, if the facts had been as the defendant supposed, he would have committed no crime in taking Joy Walker since he was acting under the authority and with the consent of her father. State v. Burnett, 142 N.C. 577, 55 S.E. 72 (1906). The evidence viewed in this light obviously permits the inference that defendant in taking Vickie Irby was laboring under a mistake as to the identity of the little girl which could negate any criminal intent. Dominguez v. State, 90 Tex.Cr.R. 92, 234 S.W. 79 (1921). In appropriate cases, culpable negligence has been considered the equivalent of criminal intent. State v. Colson, 262 N.C. 506, 138 S.E.2d 121 (1964). Accordingly, in order to negate criminal intent, the mistake under which the defendant was acting must have been made in good faith and with due care. State v. Powell, 141 N.C. 780, 53 S.E. 515 (1906).
In accordance with the principles set forth, we hold that the trial judge erred in not declaring and explaining the law on a substantial feature of the case arising from the evidence that the defendant believed that he and his son were taking the latter's daughter, Joy Walker, when they were in fact taking Vickie Irby. State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974).
The result is: in Case Number 76CR2134 wherein the defendant was charged with abducting Rush Walker, III, reversed; in Case Number 76CR2133 wherein the defendant was charged with abducting Vickie Irby, new trial.
Reversed in Case Number 76CR2134.
New trial in Case Number 76CR2133.
MORRIS and ARNOLD, JJ., concur.