State v. Cook
| Decision Date | 31 October 1934 |
| Docket Number | No. 365.,365. |
| Citation | 207 N.C. 281,176 S.E. 757 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. COOK. |
Appeal from Superior Court, Cabarrus County; Stack, Judge.
J. B. Cook, Jr., was convicted of willfully neglecting or refusing to support his illegitimate child, and he appeals.
New trial.
The defendant was tried, convicted, and sentenced upon a bill of indictment charging a violation of chapter 22S, Public Laws 1933, being "An act concerning the support of children of parents not married" (section 11); and appealed to this court, assigning error.
W. S. Bogle and Armfield, Sherrin & Earnhardt, all of Concord, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
"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 hereinafter provided. * * * " Section 1, c. 228, Pub. Laws 1933.
The defendant duly assigned as error the following portion of his honor's charge: "A man is presumed to intend to, if he has failed to do so, the presumption is he willfully did so, " and we think this statement of the law was erroneous, and entitles the defendant to a new trial.
The entire paragraph of the charge, of which the foregoing is a part, is as follows:
The father of an illegitimate child may be convicted of neglecting to support such child only when it is established that such neglect was willful, that is, without just cause, excuse, or justification. The willfulness of the neglect is an essential ingredient of the offense and, as such, must not only be charged in the bill, but must be proven beyond a reasonable doubt. The presumption of innocence with which the defendant enters the trial includes the presumption of innocence of willfulness in any failure on his part to support his illegitimate child. The failure to support may be an evidential facttending to show a willful neglect, but it does not raise a presumption of willfulness.
The word "willfully, " as used in the statute under which the defendant was charged, is used with the same import as in the act relating to willful abandonment of wife by husband, C. S. § 4447, Pub. Laws 1925, c. 290, and what is said in the case of State v. Falkner, 182 N. C. 793, 108 S. E. 756, 757, 17 A. L. R. 986, as to the effect of the use of the word "willful" in a criminal statute, is here applicable. In that case the present Chief Justice says: ...
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State v. Tarlton, 506.
...his illegitimate child. It nowhere charges that this is willfully done. This ingredient of the offense is material. In State v. Cook, 207 N. C. 261, 262, 176 S. E. 757, it is said: "The father of an illegitimate child may be convicted of neglecting to support such child only when it is esta......
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State v. Campo
...to his inability to find work and was not wilful or malicious. State v. Falkner, 182 N.C. 793, 108 S.E. 756, 17 A.L.R. 986; State v. Cook, 207 N.C. 261, 176 S.E. 757; State v. Hinson, 209 N.C. 187, 183 S.E. 397. The jury rejected this excuse and convicted the defendant on his own The remark......
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State v. Clarke, 290.
...are hereinafter provided." Wilfulness is one of the essential elements of the offense. This must be charged in the warrant. State v. Cook, 207 N.C. 261, 176 S.E. 757; State v. Spillman, 210 N.C. 271, 186 S.E. 322. Its omission is not cured by C.S. § 4623, State v. Tyson, 208 N.C. 231, 180 S......
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State v. Mansfield
...passage of the act and the offense is the willful neglect or refusal to support and maintain his or her illegitimate child. See State v. Cook (N. C.) 176 S.E. 757; State v. Henderson (N. C.) 176 S.E. On the record, we see no prejudicial or reversible error. No error. ...