State v. . Tyson

Supreme Court of North Carolina

State v. . Tyson

180 S.E. 85, 208 N.C. 231, 1935 N.C. LEXIS 372

Supreme Court of North Carolina·Decided May 22, 1935·Published·Cited by 13 cases

Opinion

ScheetcK, J.

"While the record discloses that at the close of the State’s evidence, upon motion of the solicitor for permission to amend the warrant and put in the word “wilful,” the court allowed the amendment, it nowhere appears in the record that the word “wilful” was ever actually inserted in the warrant.

An examination of the warrant as set forth in the record also reveals that the word “wilful” cannot be inserted anywhere therein and make the charge that the defendant wilfully neglected or refused to support and maintain his illegitimate child. In fact, the warrant was issued before the birth of the child, and was never amended so as to allege so much as the birth, much less the neglect and refusal to support.

Notwithstanding that the question of the defendant’s wilful neglect and refusal to support and maintain his illegitimate child was presented both by the issue submitted to the jury and the charge of the court, the motion in arrest of judgment should have been allowed, since, even assuming that the word “wilful” be inserted in any place or places therein, the warrant does not charge the offense against which the statute inveighs, or any other criminal offense, as the begetting of an illegitimate child in itself is not a crime. Section 1, chapter 228, Public Laws 1933 (section 276-a, 1933 Supplement of N. 0. Code of 1931, Michie), reads: “Any parent who wilfully 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 hereinafter provided. . . .” So far as the record discloses, no attempt was made to make the warrant comply with the statute, except to have the court allow the motion to insert therein the.word “wilful,” with no further amendment comprehending and including the derelictions of the putative father after the birth of the illegitimate child.

The defect or omission appearing, as it does on the face of the record, may be taken advantage of by motion in arrest of judgment. S. v. Lewis, 194 N. C., 620, and cases there cited.

Error.

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ScheetcK, J.

"While the record discloses that at the close of the State’s evidence, upon motion of the solicitor for permission to amend the warrant and put in the word “wilful,” the court allowed the amendment, it nowhere appears in the record that the word “wilful” was ever actually inserted in the warrant.

An examination of the warrant as set forth in the record also reveals that the word “wilful” cannot be inserted anywhere therein and make the charge that the defendant wilfully neglected or refused to support and maintain his illegitimate child. In fact, the warrant was issued before the birth of the child, and was never amended so as to allege so much as the birth, much less the neglect and refusal to support.

Notwithstanding that the question of the defendant’s wilful neglect and refusal to support and maintain his illegitimate child was presented both by the issue submitted to the jury and the charge of the court, the motion in arrest of judgment should have been allowed, since, even assuming that the word “wilful” be inserted in any place or places therein, the warrant does not charge the offense against which the statute inveighs, or any other criminal offense, as the begetting of an illegitimate child in itself is not a crime. Section 1, chapter 228, Public Laws 1933 (section 276-a, 1933 Supplement of N. 0. Code of 1931, Michie), reads: “Any parent who wilfully 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 hereinafter provided. . . .” So far as the record discloses, no attempt was made to make the warrant comply with the statute, except to have the court allow the motion to insert therein the.word “wilful,” with no further amendment comprehending and including the derelictions of the putative father after the birth of the illegitimate child.

The defect or omission appearing, as it does on the face of the record, may be taken advantage of by motion in arrest of judgment. S. v. Lewis, 194 N. C., 620, and cases there cited.

Error.

State v. . Tyson, 180 S.E. 85, 208 N.C. 231, 1935 N.C. LEXIS 372 (N.C. 1935).

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Opinion

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