State v. Moore

• Decision Date: 02 December 1942
• Docket Number: 579.
• Citation: 23 S.E.2d 31,222 N.C. 356
• Parties: STATE v. MOORE.
• Court: North Carolina Supreme Court

23 S.E.2d 31

222 N.C. 356

STATE v. MOORE.

No. 579.

Supreme Court of North Carolina

December 2, 1942

Clayton C. Holmes, of Wilmington, for defendant.

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

DENNY Justice.

The first assignment of error is to the refusal of His Honor to dismiss the proceedings on the ground that the prosecution is barred by the statute of limitations. The statute under which the defendant has been convicted provides: "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." Public Laws of 1933, c. 228, § 1, as amended by Public Laws of 1937, c. 432, § 1, as amended by Public Laws of 1939, c. 217, §§ 1 and 2, Sec. 276(a), N.C.Code of 1939 (Michie). There is a further provision contained in the Public Laws of 1933, c. 228, § 3, as amended by Public Laws of 1939, c. 217, § 3, Section 276(c), N.C.Code of 1939 (Michie), which contains the following provision: "Proceedings under sections 276(a)-276(i) 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 said sections within three years from the date of such acknowledgement of the paternity of such child by the reputed father thereof." A proceedings to establish the paternity of an illegitimate child and to prosecute the father of such child, who willfully neglects or refuses to support and maintain the same, may be instituted at any time within three years next after the birth of the child. State v. Hodges, 217 N.C. 625, 9 S.E.2d 24; State v. Killian, 217 N.C 339, 7 S.E.2d 702; State v. Bradshaw, 214 N.C. 5, 197 S.E. 564; and State v. Spillman, 210 N.C. 271, 186 S.E. 322.

The second assignment of error is to the admission of evidence showing defendant had changed lawyers after the trial in the Recorder's Court. We think this assignment of error without merit, but, were it otherwise, the record discloses that no objection was made nor exception taken to the testimony of the prosecuting witness concerning defendant's having changed lawyers since the trial in the Recorder's Court. Assignments of error must be based upon exceptions duly taken in apt time during the trial and preserved as required by the statute and the Rules of this Court. C.S. § 643; Rule 19, Sec. 3, and Rule 21 of the Rules of Practice in the Supreme Court, 221 N.C. 544, and State v. Bittings, 206 N.C. 798, 175 S.E. 299.

The third assignment of error is based upon the refusal of His Honor to grant defendant's motion for judgment of nonsuit and his motion to quash the bill of indictment. The indictment sets forth the date of...