State v. Ellison

52 S.E.2d 9, 230 N.C. 59, 1949 N.C. LEXIS 568

• Court: Supreme Court of North Carolina
• Decided: March 2, 1949
• Status: Published

Opinion

DeNNY, J.

In order to convict the defendant of the offense charged in the warrant herein, the burden was upon the State to show beyond a reasonable doubt not only that he was the father of the child, hut that he had refused or neglected to support and maintain it, and that such refusal •or neglect was willful, that is, intentionally done “without just cause, excuse or justification/’ after notice and request for support. S. v. Stiles, 228 N.C. 137, 44 S.E. 2d 728; S. v. Hayden, 224 N.C. 779, 32 S.E. 2d 333.

The warrant charges the defendant with the willful failure to support his illegitimate child. However, the jury did not return a verdict of “Guilty,” or “Guilty as charged,” or “Guilty as charged in the warrant,” or “Guilty of willful non-support of his illegitimate child,” but returned a verdict of “Guilty of willful non-support of illegitimate child.” G.S. 49-2; S. v. Vanderlip, 225 N.C. 610, 35 S.E. 2d 885. This verdict does not fix the paternity of the child, S. v. Spillman, 210 N.C. 271, 186 S.E. 322, and is, therefore, insufficient to support the judgment entered below. S. v. Allen, 224 N.C. 530, 31 S.E. 2d 530, and cases cited therein. Stacy, G. J., said, in speaking for the Court in S. v. Lassiter, 208 N.C. 251, 179 S.E. 891: “When the jury undertakes to spell out its verdict without specific reference to the charge, as in the instant case, it is essential that the spelling be correct. S. v. Parker, 152 N.C. 790, 67 S.E. 35.” S. v. Whitley, 208 N.C. 661, 182 S.E. 338; S. v. Cannon, 218 N.C. 466, 11 S.E. 2d 301; S. v. Jones, 227 N.C. 47, 40 S.E. 2d 458.

Venire de novo.