State v. Bowser

• Decision Date: 04 May 1949
• Docket Number: No. 79.,79.
• Court: North Carolina Supreme Court
• Parties: STATE. v. BOWSER.

53 S.E.2d 282

230 N.C. 330

STATE.

v.BOWSER.

No. 79.

Supreme Court of North Carolina.

May 4, 1949.

Appeal from Superior Court, Washington County; Leo Carr, Judge.

Z. T. Bowser was charged with failure to support his illegitimate child and from the judgment he appeals.

No error.

Criminal prosecution begun in Recorder's court of Washington County, North Carolina, upon a warrant dated 4 September, 1948, on affidavit of Rulie Lee Brown, sworn to on same date, charging: "That Z. T. Bowser, at and in said county, on the __day of September, 1948, with force and arms, unlawfully and wilfully did neglect, fail and refuse to support his illegitimate child, born on or about August 4, 1948, and begotten by him upon the body of the said Rulie Lee Brown, the said Z. T. Bowser being the father of said child, contrary to the statute, etc.", heard and tried in Superior Court of Washington County on appeal thereto from judgment on conviction an said Recorder's court.

After the jury was impaneled in Superior Court, and before the State offered any evidence, defendant moved that the case be remanded to the Juvenile court for trial upon the ground that the Superior Court, at term time, was without jurisdiction of the case for that at the time of the conception of the child in question, defendant was under sixteen years of age. In this connection it was agreed by counsel for defendant and the Solicitor for the State that defendant was born on 18 May, 1932; that the child in question was born 4 August, 1948; and that the warrant alleges the willful failure to maintain and support said child in the month of September 1948.

The court denied the motion, and defendant excepts.

The evidence offered by the State on the trial below, in the light most favorable to the State, is reflected in extracts of the testimony of the witnesses, as follows:

The prosecutrix, Rulie Lee Brown, testified on direct examination; "I am the mother of a child * * * a girl. Z. T. Bowser is the father of my child. He had relations with me twice, once in September 1947, and again in November 1947 * * *. My baby was born August 4, 1948. I have never had relations with anyone else but Bowser * * *. I found out that I was going to have a baby in December when I went to the doctor. My mother and father found out that I was pregnant. It was in December * * * after I went to the doctor. I told Z. T. Bowser about my being pregnant. I did not tell him right away * * *. My father talked to him. I did not talk to him before the baby was born. He would not say anything to me * * *."

Then on cross-examination, she continued: " * * * The first time I told Bowser about it was in February * * * He would not listen to me. I did not tell him anything in February."

The State also introduced the child in evidence for the purpose of letting the witness exhibit it to the jury. Exception.

John Brown, the father of prosecutrix, testified on direct examination: " * * * Rulie Lee is my daughter * * *. When I found out that she was pregnant I talkedwith her. She told me that Z. T. Bowser was the father of the child * * *. I went to him before the child was born. I went out to the baseball diamond and talked to him. He denied it. I told him she did not hang around anywhere but to his home * * *. He said, 'Yes, it is me and what are you going to do about it?' I told him * * * he would see. I did not ask him what he was going to do about it. He said that to me * * *. Nothing was said about support of the child further. My daughter and I went to his home. He was sitting on the porch and seemed that he did not want to talk. I went to him before and after the child was born. My girl and I went to Bowser's home together. She told him she wanted him to give her some support to his baby. He looked at her and asked, 'Have I got a baby? Well, I do not know about that'."

Then, continuing on the cross-examination, this witness testified: "I went to see Bowser three times. The first time was on the baseball ground to tell him what he had done. The second time was to his home with my daughter * * *. I saw Bowser at * * * moving picture place --next to where he works. I told him that I wanted some support. He said, 'I will see about it'."

And the mother of prosecutrix testified: ' "I am mother of Rulie Lee Brown * * *. I found out that she was pregnant. She told me that Z. T. Bowser was the father of her child * * *. The child has been supported by John and me since its birth."

On the other hand, defendant, reserving exception to denial of his motions made (1) a second time to remand the case to the Juvenile court, and (2) for judgment as in case of nonsuit, and testifying in behalf of himself, admitted (1) that John Brown, the father of prosecutrix, came to him at Margolis Store and asked that he "give support to the baby"; (2) that he has contributed nothing to the support of the baby, and does not intend to do so; and (3) that he has refused to contribute anything to the support of the child; but he denies in material aspect all other testimony offered by the State.

Motion of defendant for judgment as of nonsuit, at close of all the evidence, was denied and he excepted.

The court, at the close of the evidence and on motion of Solicitor for the State, permitted the warrant to be amended by inserting the word "maintain" in the charge as set out in the warrant, "to the end that the warrant may track the language of the statute". Defendant excepted.

The case was then submitted to the jury on these issues, which were answered by the jury as indicated:

"1. Is the defendant Z. T. Bowser the father of the child Peggy Ann, Brown, begotten upon the body of Rulie Lee Brown? Answer: Yes.

"2. Has the defendant Z. T. Bowser willfully neglected and refused to support and maintain his said illegitimate child, Peggy Anne Brown, begotten upon the body of Rulie Lee Brown? Answer: Yes."

Thereupon the court...