State v. Johnson
| Decision Date | 15 December 1937 |
| Docket Number | 649. |
| Citation | 194 S.E. 319,212 N.C. 566 |
| Parties | STATE v. JOHNSON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; N. A. Sinclair, Judge.
O. C Johnson was convicted of willfully neglecting and refusing to support his illegitimate child, and he appeals.
No error.
A prosecution for continuing offense bars subsequent prosecution for same offense committed at any time before institution of first prosecution, but not prosecution for continuing offense thereafter.
A "continuing offense" is breach of criminal law, not terminated by single act or fact, but subsisting for definite period and intended to cover or apply to successive similar obligations or occurrences.
This is a criminal action in which the defendant is charged with violating the provisions of chapter 228 of the Public Laws of 1933, Code 1935, §§ 276(a) to 276 (i), it being charged that the defendant willfully neglected and refused to support and maintain his illegitimate child begotten of Mozelle Ray.
On April 2, 1936, defendant was indicted by warrant issued by a justice of the peace, in which he was charged with unlawfully and willfully neglecting and refusing to support and maintain his illegitimate child, begotten of Mozelle Ray. Probable cause was found and he was held under bond for his appearance in the municipal court of Greensboro. Upon his trial in the municipal court he was convicted as charged and prosecuted his appeal to the superior court. On trial in the superior court the jury found, upon separate issues, that the defendant was the father of the illegitimate child of the prosecuting witness and that he had willfully failed and refused to support it. Judgment was pronounced that the defendant be confined in jail for a term of six months and assigned to work the roads as provided by law. The defendant served the term imposed and after the completion thereof still willfully and unlawfully failed and neglected to support said child. Thereupon, on March 1, 1937, another warrant, charging that the defendant unlawfully failed and refused to support his illegitimate child begotten upon the body of Mozelle Ray for the period subsequent to his discharge, was issued by a justice of the peace. When the case was called for trial, the defendant entered his plea of former jeopardy. Probable cause was again found and the defendant was held under bond for trial in the municipal court. The municipal court overruled the defendant's plea of former jeopardy and entered a verdict of guilty. From judgment pronounced, the defendant appealed to the superior court.
On the trial of the defendant in the superior court the jury rendered the following special verdict upon the plea of former jeopardy, to wit:
"We the jury upon the issue of former jeopardy submitted to the jury, find the following facts and return the same as its Special Verdict.
That the defendant O. C. Johnson was indicted by warrant dated April 2, 1936, alleging that he did unlawfully and willfully fail and neglect to support an illegitimate child begotten on the body of Mozelle Ray, by the said O. C. Johnson.
That said warrant was issued by W. S. Lyon, Justice of the Peace and upon hearing on said warrant by John Strickland, J. P., before whom said case was removed, the defendant was bound to the Municipal Court of the city of Greensboro in which Court said case was tried on the 24th day of April, 1936, under the law as set forth in chapter 228 Public Laws of 1933, when and where the defendant was convicted, and from the order made by said Municipal Court appealed to the Superior Court of Guilford County.
That said case came on for trial at the August 1936 term of Guilford County Superior Court when and where the jury returned the following answers to the issues submitted, to-wit:
1. Is the defendant the father of the illegitimate child of the prosecuting witness, as alleged by her? Answer: Yes.
2. Has the defendant willfully failed and refused to support and maintain his illegitimate child? Answer: Yes.
That said court was a court of competent jurisdiction, that the jury trying said case was duly sworn and empaneled and was legally constituted to try and pass upon said case.
That upon the coming in of the verdict, counsel for the defendant after conferring with his client stated that defendant does not feel that he should make any contribution to the prosecuting witness for the use and benefit of the child after the court had intimated $1.50 per week, he admitting that he was earning $20.00 per month, and that he would rather be confined under statute.
Whereupon, it is ordered and adjudged that the defendant be confined in the common jail of Guilford County for a period of six (6) months to be assigned to work under the supervision of the State Highway and Public Works Commission as provided by law.
That no other or further provision was imposed upon the defendant and he has fully served said sentence.
That after the defendant had completed his term of six months and returned home another warrant was taken out against the defendant under date of March 1, 1937, as follows:
That on or about Feb., 15, 1937, O. C. Johnson did unlawfully fail, refuse and neglect to provide adequate support for his illegitimate child begotten upon the body of one Mozelle Ray:
That in answer to said charge the defendant enters a plea of former jeopardy, and alleges that he was tried and convicted of the identical offense at the August 1936 term of this court, and has served six months sentence which is the maximum under the law and that said offense is not a continuing offense under the law and that he is not guilty.
That the child with which the defendant is charged with unlawfully and willfully failing to support in the present warrant is the same child set out and described in the warrant on which the defendant was tried at the August 1936 term and for which conviction he served the term of six months.
That the defendant has never contributed anything to the support of said child.
The defendant in the instant case was tried on said warrant in the Municipal Court of the city of Greensboro; his plea of former jeopardy was overruled, verdict of guilty was rendered against him and judgment was rendered the defendant to serve a sentence of six months on the roads, to be assigned to work under the supervision of the State Highway and Public Works Commission as provided by law and suspended upon condition that the defendant pay to the prosecuting witness for the support of the illegitimate child in question the sum of three dollars ($3.00) per week. From said verdict and judgment the defendant gave notice of appeal to the Superior Court of Guilford County.
We, the jury find the foregoing facts, and if on such facts, the Court is of the opinion that the defendant has heretofore been placed in jeopardy on the charge contained in the warrant, then, we the jury, answer the issue submitted to us, yes; and if the court be of the opinion that the defendant has not heretofore been placed in jeopardy, then we answer the issue, no."
An additional issue was submitted to and answered by the jury as follows:
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