State v. Womack

Supreme Court of North Carolina

State v. Womack

111 S.E.2d 332, 251 N.C. 342, 1959 N.C. LEXIS 574

CourtSupreme Court of North Carolina

DecidedDecember 2, 1959

Docket442

StatusPublished

Cited by4 cases

This text of 111 S.E.2d 332 (State v. Womack) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Womack, 111 S.E.2d 332, 251 N.C. 342, 1959 N.C. LEXIS 574 (N.C. 1959).

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Opinion

*343 DeNNy, J.

The only exceptions in the record are to the denial of the defendant’s motion to dismiss 'as of nonsuit at the close of the State’s evidence and renewed at the close of all the evidence, and to the signing of the judgment.

The only reference to any evidence taken in the trial below appears in the statement of case on appeal and reads as follows: “The prose-cutrix in the Superior Court trial testified that her illegitimate child, by the alleged father, Jack Womack, defendant, was bom February 18, 1959; that she first gave written notice and made demand of defendant for support of the said child on April 3, 1959, and that the same was the first and only notice and demand made by her upon defendant for support of said child; that issues set out in the record proper were submitted to the jury following this and other evidence.”

The failure to support an illegitimate child is a continuing offense, and the date such child was born is immaterial provided the action is instituted within the time prescribed by statute, G.S. 49-4, and that demand for the support of such child was made a reasonable time before the action was instituted. S. v. Perry, 241 N.C. 119, 84 S.E. 2d 329; S. v. Chambers, 238 N.C. 373, 78 S.E. 2d 209; S. v. Thompson, 233 N.C. 345, 64 S.E. 2d 157; S. v. Oliver, 213 N.C. 386, 196 S.E. 325; S. v. Johnson, 212 N.C. 566, 194 S.E. 319.

When the evidence adduced at the trial is not contained in the record, the appeal must be dismissed in the absence of error appearing upon the face of the record. Rule 19 (4), Rules of Practice in the Supreme Court, 221 N.C. at page 556. S. v. Griffin, 246 N.C. 680, 100 S.E. 2d 49; S. v. Powell, 238 N.C. 550, 78 S.E. 2d 343; S. v. Kirkland, 178 N.C. 810, 101 S.E. 560; S. v. Tyson, 133 N.C. 692, 46 S.E. 838.

The evidence set out in the statement of case on appeal is not sufficient to enable this Court to pass on the merits of the motion for judgment as of nonsuit. Furthermore, the judgment is supported by the verdict and the exception thereto cannot be sustained. S. v. Barham, ante 207; S. v. Ayscue, 240 N.C. 196, 81 S.E. 2d 403; S. v. Sloan, 238 N.C. 672, 78 S.E. 2d 738; S. v. Oliver, supra.

Appeal dismissed.

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*343 DeNNy, J.

The only exceptions in the record are to the denial of the defendant’s motion to dismiss 'as of nonsuit at the close of the State’s evidence and renewed at the close of all the evidence, and to the signing of the judgment.

The only reference to any evidence taken in the trial below appears in the statement of case on appeal and reads as follows: “The prose-cutrix in the Superior Court trial testified that her illegitimate child, by the alleged father, Jack Womack, defendant, was bom February 18, 1959; that she first gave written notice and made demand of defendant for support of the said child on April 3, 1959, and that the same was the first and only notice and demand made by her upon defendant for support of said child; that issues set out in the record proper were submitted to the jury following this and other evidence.”

The failure to support an illegitimate child is a continuing offense, and the date such child was born is immaterial provided the action is instituted within the time prescribed by statute, G.S. 49-4, and that demand for the support of such child was made a reasonable time before the action was instituted. S. v. Perry, 241 N.C. 119, 84 S.E. 2d 329; S. v. Chambers, 238 N.C. 373, 78 S.E. 2d 209; S. v. Thompson, 233 N.C. 345, 64 S.E. 2d 157; S. v. Oliver, 213 N.C. 386, 196 S.E. 325; S. v. Johnson, 212 N.C. 566, 194 S.E. 319.

When the evidence adduced at the trial is not contained in the record, the appeal must be dismissed in the absence of error appearing upon the face of the record. Rule 19 (4), Rules of Practice in the Supreme Court, 221 N.C. at page 556. S. v. Griffin, 246 N.C. 680, 100 S.E. 2d 49; S. v. Powell, 238 N.C. 550, 78 S.E. 2d 343; S. v. Kirkland, 178 N.C. 810, 101 S.E. 560; S. v. Tyson, 133 N.C. 692, 46 S.E. 838.

The evidence set out in the statement of case on appeal is not sufficient to enable this Court to pass on the merits of the motion for judgment as of nonsuit. Furthermore, the judgment is supported by the verdict and the exception thereto cannot be sustained. S. v. Barham, ante 207; S. v. Ayscue, 240 N.C. 196, 81 S.E. 2d 403; S. v. Sloan, 238 N.C. 672, 78 S.E. 2d 738; S. v. Oliver, supra.

Appeal dismissed.

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111 S.E.2d 332, 251 N.C. 342, 1959 N.C. LEXIS 574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-womack-nc-1959.

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