State v. Sharpe
| Citation | 234 N.C. 154,66 S.E.2d 655 |
| Decision Date | 19 September 1951 |
| Docket Number | No. 78,78 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE, v. SHARPE. |
Sanford W. Brown, William V. Burrow, Asheville, for defendant-appellant.
Atty. Gen. Harry M. McMullan, Asst. Atty. Gen. Ralph Moody, and Charles G. Powell, Jr., Member of the staff, Raleigh, for the State.
While the evidence offered by the State, as shown in the record of case on appeal in the present prosecution, is sufficient to support the finding of the jury on the issue as to paternity submitted by the court, we are of opinion, and hold that the evidence is insufficient to support the criminal charge preferred against defendant.
The charge against defendant is predicated upon the statute referred to as 'An act concerning the support of children of parents not married to each other', G.S. 49-1, which provides that 'Any parent who wilfully 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', and that 'A child within the meaning of this article shall be any person less than fourteen years of age and any person whom either parent might be required under the laws of North Carolina to support and maintain as if such child were the legitimate child of such parent'. G.S. 49-2.
In order to convict a defendant under this statute, G.S. 49-2, it is held by this Court that the burden is on the State to show not only that he is the father of the child, and that he has neglected or refused to support and maintain it, but further that his neglect or refusal is willful, that is, intentionally done 'without just cause, excuse or justification' after notice and request for support. State v. Hayden, 224 N.C. 779, 32 S.E.2d 333, 334, and cases cited. See also State v. Stiles, 228 N.C. 137, 44 S.E.2d 728; State v. Ellison, 230 N.C. 59, 52 S.E.2d 9.
'The charge', as stated in State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462, 464, opinion by Seawell, J., 'must be supported by the facts as they existed at the time it was formally laid in the Court, and cannot be supported by evidence of wilful failure supervening between the time the charge was made and the time of trial--at least, when the trial is had * * * upon the original warrant.' See also State v. Thompson, 233 N.C. 345, 64 S.E.2d 151.
In the light of the statute, and these decisions of this Court, applied to the evidence offered by the State, it is manifest...
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