STATE
v.
ROBINSON.
No. 290.
Supreme Court of North Carolina.
November 5, 1952.*859 Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
Theodore F. Cummings, Hickory, for defendant appellant.
WINBORNE, Justice.
Decision on this appeal as to the issue of paternity turns upon the answer to this question: Does the granting of a motion under G.S. § 15-173 for judgment of nonsuit, or verdict of not guilty in a criminal prosecution, charging defendant with willful neglect or refusal to support and maintain his illegitimate child, constitute a negative finding on the issue of paternity? If so, the plea of former acquittal set up by defendant would be well taken. But if not, then the plea of former acquittal must fail. And in the light of the statutes, G.S. §§ 49-2, 49-7, as interpreted and applied in decisions of this Court, we are of opinion, and hold that such judgment of nonsuit does not constitute an adjudication on the issue of paternity.
G.S. § 49-2 provides that "Any parent who willfully neglects or who refuses to support and maintain his or her illegitimate child shall be guilty of a misdemeanor * * *."
The only prosecution contemplated under this statute is that grounded on the willful neglect or refusal of a parent to support his or her illegitimate child,the mere begetting of the child not being denominated a crime. State v. Dill, 224 N.C. 57, 29 S.E.2d 145; State v. Stiles, 228 N.C. 137, 44 S.E.2d 728; State v. Bowser, 230 N.C. 330, 53 S.E.2d 282; State v. Thompson, 233 N.C. 345, 64 S.E.2d 157. See also State v. Tyson, 208 N.C. 231, 180 S.E. 85.
The question of paternity is incidental to the prosecution for the crime of nonsupport. State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462; State v. Bowser, supra; State v. Stiles, supra; State v. Thompson, supra.
Moreover, this statute, as interpreted by this Court, creates a continuing offense. State v. Johnson, 212 N.C. 566, 194 S.E. 319; State v. Bradshaw, 214 N.C. 5, 197 S.E. 564; State v. Davis, 223 N.C. 54, 25 S.E.2d 164.
And G.S. § 49-7, after prescribing jurisdiction of the courts in such matters, declares that "The court before which the matter may be brought shall determine whether or not the defendant is a parent of the child on whose behalf the proceeding is instituted", and that, "After this matter has been determined in the affirmative, the court shall proceed to determine the issue as to whether or not the defendant has neglected or refused to support and maintain the child who is the subject of the proceeding."
Thus it seems clear that the Legislature intended that the issue of paternity first be determined before, and separate from determination on the issue of guilt or innocence of the offense charged.
Indeed, in the case of State v. Wilson, 234 N.C. 552, 67 S.E.2d 748, 749, Barnhill, J., in a concurring opinion, summarizes decisions of this Court by saying: "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", and then concludes by saying: "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 *860 bill. The verdict could not be construed to be a verdict of not guilty of begetting the child." This declaration, when delivered, was obiter dictum. But, being so pertinent to situation in hand, it is here adopted as the law of the present case.
Hence the verdict on the first issue, that is, as to paternity, will stand. However, since there is no verdict as to guilt of defendant on the fact found as to the offense charged, there must be a new trial on the second issue,with instruction that if the issue be answered "Yes" the jury should return a verdict of guilty, or guilty as charged.
New trial.