State v. Ellis, 1

• Decision Date: 23 September 1964
• Docket Number: No. 1,1
• Parties: STATE, v. Francis ELLIS.
• Court: North Carolina Supreme Court

Page 840

137 S.E.2d 840

262 N.C. 446

STATE, v. Francis ELLIS.

No. 1

Supreme Court of North Carolina.

Sept. 23, 1964

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

Everette C. Carnes, Marion, for defendant.

MOORE, Justice.

Defendant assigns as error the absence of a specific verdict of 'guilty.' He takes the position that a verdict will not support a judgment against him unless the issues of paternity and wilful nonsupport are answered against him and, in addition, a general issue as to guilt. This contention is in accord with the holdings of this Court in a number of recent cases.

We are disposed, however, to re-examine this rule and the reasons upon which it is based, with a view to determining whether we will strictly adhere thereto in prosecutions for violations of G.S. § 49-2.

In State v. White, 225 N.C. 351, 34 S.E. 2d 139 (1945), judgment against defendant was reversed on the ground that evidence of 'wilfulness in the failure or neglect to support the illegitimate child' was lacking. In a concurring opinion Barnhill, J. (later C. J.), joined by Winborne, J. (later C. J.), and Denny, J. (now C. J.), stated:

'The trial judge submitted issues but inadvertently failed to instruct the jury that if they answered both issues in the affirmative they should, upon the facts thus found, return a verdict of guilty, and the jury failed to return a verdict on the principal issue of guilt or innocence.

'It is fundamental with us that a defendant charged with crime, other than a petty misdemeanor, who pleads not guilty, can be punished only after conviction by a jury. Art. I, Secs. 11 and 13, N.C.Const. As there was no verdict of guilty, the court was without power to impose sentence.'

It seems likely, though the concurring opinion does not so state, that the Justices were influenced by the history of the subject-matter. Prior to 1933 the statutes in this legal area were known as 'bastardy' laws. Consolidated Statutes, §§ 265-276. Actions pursuant thereto were civil rather than criminal. State v. Liles, 134 N.C. 735, 47 S.E. 750. In 1933 the bastardy laws were repealed and G.S. § 49-2 was enacted. This is a criminal statute. State v. Cook, 207 N.C. 261, 176 S.E. 757 (1934). In advocating the necessity of a specific finding on the issue of guilt or innocence in actions involving the new statute, the members of the Court undoubtedly felt that the criminal nature of the statute and actions pursuant thereto should be underscored and all uncertainty with respect thereto removed winborne, J. (labter C. J.), speaking for a unanimous Court in State v. Robinson, 236 N.C. 408, 72 S.E.2d 857 (1952), in which the paternity and nonsupport issues were answered adversely to defendant but no general verdict of guilty had been returned, said: '* * * since there is no verdict as to the guilt of defendant on the facts found as to the offense charged, there must be a new trial on the second issue,--with instruction that if the same be answered 'Yes' the jury should return a verdict of guilty, or guilty as charged.'

In State v. Love, 238 N.C. 283, 77 S.E.2d 501, the matter is more fully stated as follows:

'* * * the practice has been, and is to submit to the jury issues, first, as to defendant's paternity of the child, and, secondly, as to willful neglect or refusal of defendant to support and maintain his child, and a third, as to guilt of defendant. See State v. Hayden, 224 N.C. 779, 32 S.E.2d 333; State v. Stiles, 228 N.C. 137, 44 S.E. 2d 728; State v. Ellison, 230 N.C. 59, 52 S.E.2d 9; State v. Bowser, 230 N.C. 330, 53 S.E.2d 282; State v. Robinson, 236 N.C. 408, 72 S.E.2d 857.

'* * * three issues are required to be submitted in a single case, and * * * the trial court should instruct the jury to consider them in the order in which they appear, that is: That the issue of paternity should be considered first. That if it be answered in the negative, the other issues would not be considered. But if answered in the affirmative, the jury would proceed to consider the second issue, as to willful nonsupport; that if it be answered in the negative, the answer to the third issue would be 'not guilty'. But if the first and second issues be answered in the affirmative, the jury would answer the third issue 'guilty'; that is, the answer to the third issue would follow as a matter of law.'

A very recent case in which the procedure outlined in Love was followed is State v. Knight, 256 N.C. 687, 124 S.E.2d 855.

Because of the nature and effect of the elements involved in G.S. § 49-2, it would be difficult to properly try a case pursuant to that statute without submitting to the jury either oral interrogatories or written issues. Furthermore, G.S. § 49-7 seems to contemplate the submission of issues. The only prosecution contemplated under this statute is grounded on the wilful neglect or refusal of a parent to support his or her illegitimate child. The mere begetting of the child is not a crime. The question of paternity is incidental to the prosecution for the crime of nonsupport--a preliminary requisite to conviction. If a jury find that the accused is parent of the child but has not wilfully failed or refused to support the child, there can be no conviction for no crime has been committed. But G.S. § 49-2 creates a continuing offense. The determination of paternity will stand; and upon a prosecution for a subsequent wilful neglect or refusal to support, the accused is not entitled to have the question of paternity re-litigated. State v. Coppedge, 244 N.C. 590, 94 S.E.2d 569; State v. Chambers, 238 N.C. 373, 78 S.E.2d 209; State v. Robinson, supra.

This brings us to the question, whether the submission of the general issue of guilt or innocence which, according to State v. Love, supra, must be answered by direction of the trial judge, is essential to support a judgment.

The verdict of the jury on the issues of paternity and nonsupport is in the nature of a special verdict. It is firmly established in this jurisdiction by precedent and statute that verdict in criminal cases may be either general or special. In arriving at a general verdict, the jurors take the law as given by the court and apply the law to the facts as they find them to be and reach a general conclusion, usually 'guilty' or 'not guilty.' 'A special verdict is that by which the jury finds the facts only, leaving the judgment to the court. ' G.S. § 1-201. Ordinarily, the form of a special verdict is a written recital of the jury's findings of the ultimate material facts. See State v. High, 222 N.C. 434, 23 S.E.2d 343; State v. Sasseen, 206 N.C. 644, 175 S.E. 142. It was originally a requirement in this jurisdiction that the special verdict state that the jury finds the accused guilty if in the opinion of the court, upon the facts found, he is guilty, and not guilty if in the opinion of the court the facts found do not establish guilt. State v. Wallace, 25 N.C. 195. In State v. Moore, 107 N.C. 770, 12 S.E. 249, it is said: 'The jury rendered no verdict of guilty or not guilty; they simply found that certain facts stated by them were true. It was not the province of the court to find that defendant was guilty or not guilty. It should have said that the facts found did or did not constitute the offense charged in the warrant, and the verdict of the jury should have been rendered by them in accordance with the opinion of the court. This is well settled, and it is strange indeed that courts so frequently, no doubt by mere inadvertence, fail to observe the law in such respect. ' However, in State v. Ewing, 108 N.C. 755, 13 S.E. 10, it was held that where there is a special verdict, finding the material facts, no general verdict of guilt or innocence is necessary. The Court explained: 'It very obviously appears from the record that the jury intended to, and certainly did, render a special verdict embodying all of the material facts of the case. This they did, and no more, and this it was their province to do. This verdict remains * * * and the judgment of the court is founded upon it. The jury could not go further and render two verdicts, one special and the other general, so that both might prevail at the same time. To do so would involve practical absurdity. ' Further: 'On the argument it was brought to our attention that some confusion and inconsistency [have] prevailed in numerous decisions of this court in respect to special verdicts in criminal cases. We have examined the cases cited and others, and upon mature consideration we think it better that upon the special verdict in a case the court should simply declare its opinion that the defendant is guilty or not guilty, and enter judgment accordingly. Indeed,...