State v. Gibson

95 S.E.2d 125 (1956)

245 N.C. 71

STATE v. N. W. GIBSON.

No. 505.

Supreme Court of North Carolina.

November 21, 1956.

George B. Patton, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

Bedford W. Black, Kannapolis, John Hugh Williams, Concord, for defendant.

PER CURIAM.

The State concedes that assignments of error Nos. 12 and 13 present prejudicial error.

Assignment of error No. 12 is based on an exception to the peremptory instruction given to the jury as follows: "Now, members of the jury, the court charges you that if you find from the evidence the facts to be as all the evidence tends to show, it would be your duty to return a verdict of guilty in this case."

In State v. Hayden, 224 N.C. 779, 32 S.E.2d 333, 334, this Court, in considering a similar instruction, said: "The court's instruction deprived the defendant of his right to have the jury consider the question of his willfulness as an issuable fact. * * * Rarely may a peremptory instruction be given to convict the defendant, if the jury finds the facts to be as testified, in cases where the substance of the offense is wilfulness or a specific intent is an essential element."

The 13th assignment of error is based on an exception to the following portion of the charge to the jury: "The court charges you that if you are satisfied from this evidence beyond a reasonable doubt that the defendant has abandoned this child and has failed to support the child, failed to do *126 anything for it, * * * it would be your duty to return a verdict of guilty."

Likewise, in this portion of the charge the court inadvertently failed to include in the instruction the element of wilful abandonment and nonsupport. The burden was upon the State to show beyond a reasonable doubt that the defendant wilfully abandoned his child, without providing adequate support for such child. State v. Smith, 241 N.C. 301, 84 S.E.2d 913.

For the errors pointed out, there must be a new trial.

New trial.

JOHNSON, J., not sitting.