State v. Dill

• Citation: 29 S.E.2d 145,224 N.C. 57
• Decision Date: 01 March 1944
• Docket Number: 73.
• Parties: STATE v. DILL.
• Court: United States State Supreme Court of North Carolina

29 S.E.2d 145

224 N.C. 57

STATE v. DILL.

No. 73.

Supreme Court of North Carolina

March 1, 1944

Proceeding on indictment charging the defendant with willful neglect and refusal to support illegitimate child begotten by him of Cora Arrington.

The facts are these:

1. The child in question was born 27 June, 1930.

2. Bastardy proceeding was instituted under C.S. §§ 265-279 which resulted in verdict at the September Term, 1931 Madison Superior Court, establishing the paternity of the child, it being found by the jury that the defendant was the father of said child, and judgment was thereupon entered that he pay to the mother of the child the sum of $200.

3. The child and its mother lived in a house belonging to the defendant from 1930 to 1943. The mother testified: 'He has never charged me any rent. * * * I never did rent from him, but I allowed he was letting me live up there on account of that child.'

4. The present proceeding was instituted by indictment at the May Term, 1943, Madison Superior Court; tried at the August Term, resulted in verdict of guilty, and judgment of six months in jail, suspended on conditions, etc.

Defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Carl R. Stuart, of Marshall, for defendant.

STACY, Chief Justice.

The case turns on whether the proceeding is barred by the lapse of time. G.S. § 49-4.

The child in question was born 27 June, 1930. Its paternity was established under the old law, C.S. §§ 265-279, at the September Term, 1931, Madison Superior Court. The present proceeding originated by indictment at the May Term, 1943 more than 13 years after the birth of the child. Under the decision in State v. Killian, 217 N.C. 339, 7 S.E.2d 702, it would seem that the prosecution is barred.

The pertinent provisions of Chap. 228, Public Laws 1933, as amended by Chap. 217, Public Laws of 1939, follow: 'Sec. 3. Proceedings under this Act to establish the paternity of such child may be instituted at any time within three years next after the birth of the child, and not thereafter: Provided, however, that where the reputed father has acknowledged the paternity of the child by payments for the support of such child within three years from the date of the birth thereof, and not later, then, in such case, prosecution may be brought under the provisions of this Act within three years from the date of such acknowledgment of the paternity of such child by the reputed father thereof.' See State v. Moore, 222 N.C. 356, 23 S.E.2d 31.

The only 'prosecution' contemplated by this legislation is that grounded on the wilful neglect or refusal of any parent to support and maintain his or her illegitimate child, the mere begetting of the child not being denominated a crime. G.S. § 49-2; State v. Tyson, 208 N.C. 231, 180 S.E. 85. It was held in State v. Bradshaw, 214 N.C. 5, 197 S.E. 564, a case which arose prior to the amendment of 1939, that an indictment under this statute, instituted more than three years after the birth of the child, was properly dismissed, as the limitation was positive and unbending, and not confined to proceedings to establish the paternity of the child. Attention was directed to the 'penalties as are hereinafter provided' and to the procedural provisions of the enactment, which contemplate initial findings and an order of support, subject to modification or increase from time to time, and to be enforced by such prescribed supplemental orders as the exigencies of the case may require. See G.S. §§ 49-7, 49-8, and State v. Duncan, 222 N.C. 11, 21 S.E.2d 822.

In consequence of this decision, the statute was amended in 1939 as above set out. The only material change wrought by this particular amendatory provision was to extend the time within which 'prosecution may be brought', where the reputed father has acknowledged the paternity of the child by payments for its support within three years from the date of its birth, from 'within three years next after the birth of the child' to 'within three years from the date of such acknowledgment of the paternit of such child by the reputed father thereof.' State v. Killian, supra.

It is to be noted that here the paternity of the child was established in a bastardy proceeding had under the old law, and not under the existing law. Hence the present prosecution is a new and independent proceeding, rather than a motion in the original proceeding to enforce the order of support as contemplated by the 1933 Act. As such, it is barred by Sec. 3 of the 'act concerning the support of children of parents not married to each other'. Chap. 228, Public Laws 1933. See G.S. § 49-1.

It results, therefore, that the motion for judgment of nonsuit will be sustained. G.S. § 15-173, C.S. 4643.

Reversed.

SEAWELL Justice (dissenting).

In my judgment, there is now no basis for the holding that the prosecution for the willful failure or neglect to support an illegitimate child must be brought within three years, or any other number of years, after the birth. The original statute, Chapter 228, Public Laws of 1933, Sec. 3, read as follows: 'Sec. 3. Proceedings under this act may be instituted at any time within three years next after the birth of the child and not thereafter.' Now there are two proceedings included in the act--one, a civil proceeding to establish the paternity; another, a distinctively criminal proceeding directed toward punishment for the newly created offense of willful nonsupport. Since indictment, as well as the civil proceeding to establish paternity, was a ' proceeding under this act,' the Court, in State v. Bradshaw, 214 N.C. 5, 197 S.E. 564, concluded that the indictment also in that case was barred under this section. Immediately, by Chapter 217, Public Laws of 1939, the General Assembly amended this section, making it read as it now stands: G.S. § 49-4. 'Proceedings under this article to establish the paternity of such child may be instituted at any time within three years next after the birth of the child.' Then follows the provision relating to acknowledgment of paternity which, if made within three years of birth, will support an indictment if brought within three years after the acknowledgment, based upon the acknowledgment without reference to any adverse judicial proceeding. The proviso, however, does not touch the facts of this case.

If the Legislature meant anything at all by this change, it could mean only that the three year limitation is confined to...