State v. Robinson

Decision Date05 November 1952
Docket NumberNo. 290,290
Citation72 S.E.2d 857,236 N.C. 408
PartiesSTATE, v. ROBINSON.
CourtNorth Carolina Supreme Court

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

Theodore F. Cummings, Hickory, for defendant appellant.

WINBORNE, Justice.

Decision on this appeal as to the issue of paternity turns upon the answer to this question: Does the granting of a motion under G.S. § 15-173 for judgment of nonsuit, or verdict of not guilty in a criminal prosecution, charging defendant with willful neglect or refusal to support and maintain his illegitimate child, constitute a negative finding on the issue of paternity? If so, the plea of former acquittal set up by defendant would be well taken. But if not, then the plea of former acquittal must fail. And in the light of the statutes, G.S. §§ 49-2, 49-7, as interpreted and applied in decisions of this Court, we are of opinion, and hold that such judgment of nonsuit does not constitute an adjudication on the issue of paternity.

G.S. § 49-2 provides that 'Any parent who willfully neglects or who refuses to support and maintain his or her illegitimate child shall be guilty of a misdemeanor * * *.'

The only prosecution contemplated under this statute is that grounded on the willful neglect or refusal of a parent to support his or her illegitimate child,--the mere begetting of the child not being denominated a crime. State v. Dill, 224 N.C. 57, 29 S.E.2d 145; State v. Stiles, 228 N.C. 137, 44 S.E.2d 728; State v. Bowser, 230 N.C. 330, 53 S.E.2d 282; State v. Thompson, 233 N.C. 345, 64 S.E.2d 157. See also State v. Tyson, 208 N.C. 231, 180 S.E. 85.

The question of paternity is incidental to the prosecution for the crime of nonsupport. State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462; State v. Bowser, supra; State v. Stiles, supra; State v. Thompson, supra.

Moreover, this statute, as interpreted by this Court, creates a continuing offense. State v. Johnson, 212 N.C. 566, 194 S.E. 319; State v. Bradshaw, 214 N.C. 5, 197 S.E. 564; State v. Davis, 223 N.C. 54, 25 S.E.2d 164.

And G.S. § 49-7, after prescribing jurisdiction of the courts in such matters, declares that 'The court before which the matter may be brought shall determine whether or not the defendant is a parent of the child on whose behalf the proceeding is instituted', and that, 'After this matter has been determined in the affirmative, the court shall proceed to determine the issue as to whether or not the defendant has neglected or refused to support and maintain the child who is the subject of the proceeding.'

Thus it seems clear that the Legislature intended that the issue of paternity first be determined before, and separate from determination on the issue of guilt or innocence of the offense charged.

Indeed, in the case of State v. Wilson, 234 N.C. 552, 67 S.E.2d 748, 749, Barnhill, J., in a concurring opinion, summarizes decisions of this Court by saying: 'The only prosecuti...

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15 cases
  • State v. Green, 22
    • United States
    • North Carolina Supreme Court
    • October 14, 1970
    ...of the child on whose behalf the proceeding is instituted.' G.S. § 49--7; State v. Robinson, 245 N.C. 10, 95 S.E.2d 126; State v. Robinson, 236 N.C. 408, 72 S.E.2d 857. It is frequently said that being the father of an illegitimate child, without more, is not a crime, for a man does not vio......
  • State v. Robinson
    • United States
    • North Carolina Supreme Court
    • November 21, 1956
    ...of the evidence but must be established beyond a reasonable doubt. State v. Ellison, 230 N.C. 59, 52 S.E.2d 9; State v. Robinson, 236 N.C. 408, 72 S.E.2d 857; State v. Humphrey, 236 N.C. 608, 73 S.E.2d 479; State v. Chambers, 238 N.C. 373, 78 S.E. 2d Proceedings under the Act can only be in......
  • State v. Ellis, 1
    • United States
    • North Carolina Supreme Court
    • September 23, 1964
    ...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......
  • Tidwell v. Booker
    • United States
    • North Carolina Supreme Court
    • June 17, 1976
    ...for the subsequent offense is not barred by the prosecution for the former offense on the theory of double jeoparty. State v. Robinson, 236 N.C. 408, 72 S.E.2d 857 (1952). Upon such subsequent prosecution of the alleged father, the question of paternity, necessarily determined against him i......
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