State v. Green, 22

• Decision Date: 14 October 1970
• Docket Number: No. 22,22
• Citation: 176 S.E.2d 756,277 N.C. 188
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Edward GREEN.

Page 756

176 S.E.2d 756

277 N.C. 188

STATE of North Carolina v. James Edward GREEN.

No. 22.

Supreme Court of North Carolina.

Oct. 14, 1970.

Alston, Pell, Pell & Weston, Greensboro, for defendant appellant.

Robert Morgan, Atty. Gen., Jean A. Benoy, Deputy Atty. Gen., Henry T. Rosser Asst. Atty. Gen., R. D. Weathers, Asst. Atty. Gen., for the State.

HUSKINS, Justice:

The writ of error Coram nobis is an established common law writ available under our procedure to challenge the validity of a conviction by reason of matters extraneous to the record. In Re Taylor, 230 N.C. 566, 53 S.E.2d 857 (1949). It has been supplanted by G.S. § 15--217 et seq., with reference to 'any person imprisoned.' Otherwise the writ remains as at common law and is available under our procedure. Its availability in this State stems from G.S. § 4--1 which adopts the common law as the law of this State (with exceptions not pertinent here), and authority for the writ stems from Article IV, Section 8 (now Section 10) of the Constitution of North Carolina which gives the Supreme Court authority to exercise supervision over the inferior courts of the State. State v. Daniels, 231 N.C. 17, 56 S.E.2d 2 (1949).

Since authority for issuance of the writ derives from the supervisory power of the Supreme Court conferred by the Constitution, 'it is necessary that an application be made to this Court for permission to apply for the writ to the Superior Court in which the case was tried. In re Taylor (supra), 230 N.C. 566, 569, 53 S.E.2d 857, 859. It is granted here only upon a 'prima facie showing of substantiality,' and it is observed in the Taylor case last cited, 'the ultimate merits of the petitioner's claim are not for us, but for the trial court. " State v. Daniels, supra (231 N.C. 17 at 25, 56 S.E.2d at 8); State v. Daniels, 231 N.C. 341, 56 S.E.2d 646 (1949).

Coram nobis is not a substitute for an appeal. 'Under our practice permission to petition the Superior Court in which the petitioning defendant was tried is given only when the matter on which the petition is based is 'extraneous to the record. " State v. Daniels, 232 N.C. 196, 59 S.E.2d 430 (1950).

Defendant has neither sought nor obtained permission of this Court to apply for the writ. Moreover, his unauthorized application was addressed to the wrong court. 'The writ of error Coram nobis 'is brought for an alleged error of fact, not appearing upon the record, and Lies to the same court, in order that it may correct the error, which it is presumed would not have been committed had the fact in the first instance been brought to its notice. " State v. Merritt, 264 N.C. 716, 142 S.E.2d 687 (1965). A writ of error Coram nobis 'will lie to any court of record, and as our county courts are courts of record we cannot conceive of a reason why one of them may not correct an error of fact in its judgment, upon a writ of error brought before itself.' Roughton v. Brown, 53 N.C. 393, 394 (1861). The Reidsville Recorder's Court is a court of record, Chapter 104, Public Laws of North Carolina, Session 1909, and therefore defendant's petition for writ of error Coram nobis should in all events have been addressed to the court in which he was tried. For these reasons the decision of the Court of Appeals, although based on other grounds, affirming the order of the superior court denying defendant's application was correct. Even so, to the end that the question defendant seeks to present may be discussed sufficiently to dispose of this appeal on its merits, we treat the appeal itself as an application to this Court for permission to petition the Reidsville Recorder's Court for the issuance of a writ of error Coram nobis.

Defendant poses the following question for decision: Is a conviction of willful failure to support illegitimate children a 'serious misdemeanor' so as to require appointment of counsel or intelligent waiver thereof under the Sixth and Fourteenth Amendments to the United States Constitution? The answer is no.

Defendant was charged with and convicted of the willful neglect and refusal to support and maintain his illegitimate children, a violation of G.S. § 49--2. The maximum punishment provided by law for this offense is six months in prison. G.S. § 491--8. The court is authorized to fix by order a specific sum of money to be paid by defendant for the support and maintenance of the child or children in question and to suspend the prison sentence on condition the periodic payments are made as ordered. G.S. § 49--7.

Defendant argues that in addition to the maximum punishment of six months other serious consequences are involved, in that, once the issue of paternity is established it cannot again be contested and defendant may then be tried again and again for willful failure to support and may receive successive sentences of six months until all children involved reach eighteen years of age. To avoid those consequences, defendant says he must pay in excess of $9300 under the judgment pronounced in this case. He contends these are serious consequences by any reasonable standard and compel the conclusion that one charged with a violation of G.S. § 49--2 is charged with a 'serious offense' requiring appointment of counsel for indigent defendants or intelligent waiver thereof.

Defendant's position is unsound. The only prosecution authorized by Chapter 49 of the General Statutes is grounded on the willful neglect or refusal of Any parent to support and maintain his or her illegitimate child--the paternity itself is no crime. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956); State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964). The question of paternity is merely incidental to the prosecution for nonsupport and involves no punishment. The fact that defendant may be prosecuted for a second or third willful failure to support his illegitimate children and receive successive sentences of six months has no logical relevance to the question posed. Every man is subject to prosecution for repeated violations of any criminal statute. Furthermore, the support payments are not part of the punishment. All men have a moral duty to support their children--legitimate or illegitimate--and G.S. § 49--2 makes this moral obligation legal and enforceable with respect to illegitimate children. State v. Tickle, 238 N.C. 206, 77 S.E.2d 632 (1953). All these 'consequences' are merely side effects that may or may not materialize. They have no relevance on the question of punishment. The ony Punishment authorized by law for the willful failure or neglect to support an illegitimate child is found in G.S. § 49--8 and is limited at most to six months in prison.

Whether an offense is Petty or Serious is measured, in both state and federal courts, by the punishment authorized by law for the particular offense in question. 18 U.S.C. § 1; G.S. § 7A--451. Under these statutory yardsticks any crime the maximum authorized punishment for which does not exceed six months in prison is a petty offense for which the offender may be tried without a jury and without the assistance of counsel. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969); Blue Jeans Corp. v. Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.E.2d 629 (1966); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.E.2d 491 (1968); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

We hold that defendant was charged with a petty offense and his trial without counsel did not violate his constitutional right to counsel under the Sixth and Fourteenth Amendments.

Defendant's appeal, treated as a petition to this court for leave to file a petition in the Recorder's Court of Reidsville for a writ of error Coram nobis, is denied. The decision of the Court of Appeals affirming the denial order of Godwin, J., is

Affirmed.

SHARP, Justice (dissenting):

Defendant, an indigent, was convicted in the Reidsville Recorder's Court of a violation of G.S. § 49--2. At the trial he was not afforded counsel. The majority of the court deny him permission to petition the Recorder's Court for writ of error Coram nobis upon the premise that a man charged for the first time with the willful failure to support his illegitimate child is not charged with a 'serious offense' and, therefore, has no constitutional right to the assistance of counsel. The offense is labeled 'petty' under the rule enunciated in State v. Morris, 275 N.C. 50, 165 S.E.2d 245. A serious offense is therein defined as 'one for which the authorized punishment exceeds six months' imprisonment and a $500 fine.' All other offenses are declared to be 'petty.' Id. at 59, 165 S.E.2d at 251. For the reasons hereinafter stated it is my view that this rule is inapplicable to the First prosecution of a defendant for the willful failure to support his illegitimate child.

Proceedings to compel a parent to support his illegitimate child were once regarded as being civil in nature. The legislature of 1933, however, changed the approach to the problem. 'Now the proceeding is criminal.' State v. Robinson, 245 N.C. 10, 14 95 S.E.2d 126, 129; P.L.1933, Ch. 228; G.S. § 49--2; State v. Ellis, 262 N.C. 446, 137 S.E.2d 840.

In order to convict a man of violating G.S. § 40--2, the State must prove beyond a reasonable doubt that (1) he is the father of the illegitimate child named in the warrant; and (2) he has willfully, that is, intentionally and without justification, failed to support and maintain the child after notice and request for support. State v. Mason, 268 N.C. 423, 150 S.E.2d 753; State v. Ellison, 230 N.C. 59, 52 S.E.2d 9; State v. Stiles, 228 N.C. 137, 44 S.E.2d 728.

In such a prosecution, the issue which must first be determined is 'whether or not the defendant is a parent of the child on whose behalf the proceeding is instituted.' G.S. §...