State v. Dixon

127 S.E.2d 246 (1962)

257 N.C. 653

STATE v. David Lee DIXON.

No. 73.

Supreme Court of North Carolina.

September 19, 1962.

*247 Roberts & Stocks, by Eugene A. Smith, Greenville, for defendant, appellant.

T. W. Bruton, Atty. Gen., James F. Bullock, Asst. Atty. Gen., for the State.

HIGGINS, Justice.

The defendant assigns as error the refusal of the court to grant his motion for nonsuit renewed at the close of all the evidence. The motion to dismiss should have been allowed. The evidence fails to show any notice to the defendant or request for support. "In order to convict the defendant under the statute, the burden was on the State to show not only that he was the father of the child, and that he had refused or neglected to support and maintain it, but further that his refusal or neglect was wilful, that is intentionally done, `without just cause, excuse or justification,' after notice and request for support." State v. Hayden, 224 N.C. 779, 32 S.E.2d 333, citing authorities.

The defendant also assigns as error this instruction to the jury: "Now, the Court instructs you that if you answer the first issue yes and the second issue yes and upon a consideration of the third issue if you find the facts to be as all the evidence tends to show it would be your duty to answer the third issue yes also; if you fail to so find you would answer it no."

The Attorney General concedes the above charge is erroneous and in conflict with State v. Jones, 254 N.C. 351, 118 S.E.2d 908; State v. Gibson, 245 N.C. 71, 95 S.E.2d 125; State v. Hayden, supra; State v. Cook, 207 N.C. 261, 176 S.E. 757. "It is as much the duty of the State to establish wilful failure to support by evidence showing that fact beyond reasonable doubt as it is to so establish paternity." State v. Jones, supra.

The Attorney General calls attention to certain deviations from statutory requirements as shown by the record: The affidavit initiating the prosecution may be made by the mother or the Director of Public Welfare, G.S. § 49-5; State v. Robinson, 245 N.C. 10, 95 S.E.2d 126. Neither the mother nor the Director of Public Welfare signed the affidavit. Sound reason appears why only the mother or her personal representative, or (under certain conditions) the Director of Public Welfare may initiate the prosecution. The mother as well as the father is liable for the support of the illegitimate child. In all likelihood the mother will continue to be its custodian. She may neither need nor desire any assistance or support from the father. The statute is so worded that she may decide whether to call upon the father for assistance. In the event she elects not to make the demand, her election will be respected unless the child is likely to become a public charge; then the Director of Public Welfare may proceed.

G.S. § 49-7 provides that the proceeding may be instituted in the superior court or in any inferior court except courts of justices of the peace. This proceeding was instituted in and made returnable to the court of a justice of the peace. State v. Robinson, supra.

Finally, the record before us shows: "Verdict: Guilty of the charge of bastardy." "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." State v. Robinson, 236 N.C. 408, 72 S.E.2d 857. The verdict will not support a judgment.

So defective is this record that the whole proceeding must be declared a nullity. However, the mother of the child or the Director of Public Welfare if the child is likely to become a public charge, may institute a proceeding before a proper court under G.S. § 49-2 charging the defendant *248 with the misdemeanor there defined. The Superior Court of Pitt County will enter an order arresting the judgment and dismissing the proceeding.

Remanded with Direction to Dismiss.