State v. Bowser

53 S.E.2d 282, 230 N.C. 330, 1949 N.C. LEXIS 643

• Court: Supreme Court of North Carolina
• Decided: May 4, 1949
• Status: Published

Opinion

'W'inboeNE, J.

While the assignments of error presented by appellant on this appeal fail to reveal error in the trial below, we treat some of them seriatim:

1. There is no error in refusing to remand the case to the Juvenile Court of Washington County.

The statute, pertaining to the establishment of Juvenile Courts, Article 2 of Chapter 110 of General Statutes, provides that “the Superior Courts shall have exclusive original jurisdiction of any case of a child less than sixteen years of age residing in or being at the time within their respective districts: (1) “Who,” among other things, “violates any . . . State law . . .” And it is understood, in law, that the term “court” when so used in this statute, refers to the Juvenile Court which is therein created, G.S. 110-22, formerly C.S. 5040, as a separate but not independent part of the Superior Court. See In re Prevatt, 223 N.C. 833, 28 S.E. 2d 564, and cases cited.

In the light of this statute, G.S. 110-21, formerly C.S. 5039, as applied to the facts of the present case, it is seen that at the time the offense with which defendant is charged was committed, as well as on the date warrant was issued against him, he was more than sixteen years of age. Defendant is indicted under G.S. 49-2, which 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 and subject to such penalties” as are provided in the statute referred to as “An Act Concerning the Support of Children of Parents Not Married to Each Other.” The only prosecution contemplated under this statute is that grounded on the willful neglect or refusal of any parent to support and maintain his or her illegitimate child, — the mere begetting of the child not being denominated a crime. S. v. Stiles, 228 N.C. 137, 44 S.E. 2d 728, and cases cited. Tbe question of paternity is incidental to the prosecution for the crime of nonsupport. S. v. Summerlin, 224 N.C. 178, 29 S.E. 2d 462; S. v. Stiles, supra. Defendant, having been born on 18 May, 1932, as stipulated, became sixteen years of age on 18 May, 1948, and the warrant was issued 4 September, 1948.

2. As to the assignments of error based upon exceptions to denial of motions, aptly made, for judgment as of nonsuit, the evidence offered against defendant is sufficient to take the case to thé jury (1) on questions of paternity of the child, and of admission of paternity by defendant, which are incidental to the prosecution for the crime of nonsupport, S. v. Summerlin, supra; S. v. Stiles, supra; and (2) on question of willful neglect and refusal by defendant to support and maintain his illegitimate child. G.S. 49-2.

3. The ruling of the court in permitting the amendment to the warrant, to which exception is also taken, is in keeping with rules of practice in the courts of the State. See S. v. Brown, 225 N.C. 22, 33 S.E. 2d 121, where the authorities are cited.

4. As to the charge: While portions of the charge as shown in the record to which exceptions are taken, may be in some respects inaccurate, it appears reasonably clear that when read contextually the jury could not have been confused or misled, and, hence, prejudicial error is not made to appear.

5. Other exceptions have been considered and found without merit.

In the judgment below, there is

No ejrror.