State v. Thompson

64 S.E.2d 157 (1951)

233 N.C. 345

STATE v. THOMPSON.

No. 219.

Supreme Court of North Carolina.

March 21, 1951.

*159 Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.

Barber & Thompson, Pittsboro, for defendant.

DENNY, Justice.

When the appeal was called for hearing in this Court, counsel for defendant moved that the judgment entered below be arrested, for that the warrant was issued on 3 January, 1950, prior to the birth of the illegitimate child on 24 May, 1950, and the amendment permitted in the court below resulted in the trial and conviction of the defendant upon an offense entirely different from that charged (if an offense was charged) in the original warrant.

It is well settled by this Court that the power of the Superior Court to allow amendments to warrants is very comprehensive. State v. Stone, 231 N.C. 324, 56 S.E.2d 675; State v. Carpenter, 231 N.C. 229, 56 S.E.2d 713; State v. Bowser, 230 N.C. 330, 53 S.E.2d 282; State v. Wilson, 227 N.C. 43, 40 S.E.2d 449; State v. Brown, 225 N.C. 22, 33 S.E.2d 121; State v. Holt, 195 N.C. 240, 141 S.E. 585, Id., 192 N.C. 490, 135 S.E. 324; State v. Mills, 181 N.C. 530, 106 S.E. 677. A warrant, however, cannot be amended so as to charge a different offense. State v. Clegg, 214 N.C. 675, 200 S.E. 371; State v. Goff, 205 N.C. 545, 172 S.E. 407. But ordinarily, under our statute, G.S. § 7-149, Rule 12, the trial judge may allow, in his discretion, an amendment to a warrant both as to form and substance before or after verdict, provided the amended warrant does not change the nature of the offense intended to be charged in the original warrant. State v. Mills, supra; State v. Poythress, 174 N.C. 809, 93 S.E. 919; State v. Telfair, 130 N.C. 645, 40 S.E. 976.

Notwithstanding these broad powers with respect to amendments, a warrant as well as the amendments thereto must relate to the charge and the facts supporting it as they existed at the time it was formally laid in the court. State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462.

Therefore, a conviction upon an amended warrant, unsupported by the facts as they existed at the time the warrant was issued, will not be upheld. Neither will a conviction for the wilful failure to support an illegitimate child be upheld on such warrant, where the State, in order to sustain the conviction, must rely altogether on evidence of wilful failure to support the child subsequent to the time the charge was laid in court. State v. Summerlin, supra.

The mere begetting of an illegitimate child is not denominated a crime. State v. Stiles, 228 N.C. 137, 44 S.E.2d 728; State v. Dill, 224 N.C. 57, 29 S.E.2d 145. Likewise, the failure of a father to pay the expenses of the mother incident to the birth of his illegitimate child, is not a criminal offense. But upon conviction the court may require the payment of such expenses. And the issue or question of paternity is incidental to the prosecution for the crime of nonsupport. State v. Bowser, supra; State v. Stiles, supra; State v. Summerlin, supra.

In order to convict a defendant for the nonsupport of an illegitimate child, the burden is on the State to show beyond a reasonable doubt, that he is the father of the child and that he had refused or neglected to support and maintain it, and that such refusal or neglect was wilful, that is, intentionally done, "without just cause or justification", after notice and request for support. State v. Hayden, 224 N. C. 779, 32 S.E.2d 333; State v. Ellison, 230 N.C. 59, 52 S.E.2d 9; State v. Stiles, supra.

The motion in arrest of judgment will be allowed for the reason that a man cannot be held criminally liable for the wilful failure to support an unborn illegitimate child. Moreover, a warrant may not be amended so as to charge the defendant with an offense which was committed, *160 if committed at all, after the warrant was issued.

The defendant's objection to the allowance of the amendment to the warrant should have been sustained. Consequently, it is unnecessary to discuss the assignments of error appearing in the case on appeal.

Judgment arrested.