State v. Stone

• Decision Date: 14 December 1949
• Docket Number: No. 650.,650.
• Citation: 56 S.E.2d 675,231 N.C. 324
• Court: North Carolina Supreme Court
• Parties: STATE v. STONE.

56 S.E.2d 675

231 N.C. 324

STATE

v.STONE.

No. 650.

Supreme Court of North Carolina.

Dec. 14, 1949.

Sam Stone was convicted in the Superior Court of Guilford County, Allen H. Gwyn, J, of wilfully neglecting to provide adequate support for his wife and children and he appealed.

The Supreme Court, Devin, J., found no error, holding that the evidence sustained the conviction and that a motion in arrest of judgment because of alleged insufficiency of the warrant charging the offense was properly denied.

Harry McMullan, Atty. Gen, Ralph Moody, Asst. Atty Gen, and John R. Jordan, Jr., Member of Staff, Raleigh, for State.

Wm. Reid Dalton, Reidsville, for defendant.

DEVIN, Justice.

The evidence offered by the State was sufficient to support the verdict and judgment. It appeared that defendant's wife, a victim of polio and compelled to use crutches, was at the times alleged in the warrant living in the home of her mother who was employed in a local cotton mill. With them lived the two children of defendant and his wife, one aged 10, named Bobbie, and the other aged 2 years, named Jimmie. There was evidence that defendant while living part of the time with his wife wilfully neglected to provide support for her and their children though he was able to work; that his earnings during this time amounted to $30 per month and board for farm work, and at other times to $25 per week when employed by the operator of a dairy.

The defendant's principal defense was that his wife had committed adultery, and that he was not the father of the child Jimmie who was born October 1, 1946. It appeared from the State's evidence that in July 1945 defendant had been committed to the State Hospital at Morganton; that he had escaped after a few weeks, was immediately recommitted, and again escaped and never returned to the hospital. Later, certificate was issued by the hospital that he was deemed of sound mind. Defendant testified his second enlargement from the hospital did not occur until July 1946, but the State's evidence tended to fix the time of his second escape as in the fall of 1945, and there was evidence to show that he thereafter remained a portion of the time in Rockingham County at the home of his mother, and part of the time in Guilford County with his wife. During this time he made no adequate contribution to the support of his wife or either of the children, and before the warrant was issued in January 1949 had ceased altogether to live with them.

In view of the defendant's affirmative defense that his wife had committed adultery, and that he was not the father of the youngest child, the trial judge submitted written issues to the jury as to the paternity of the child, the adultery of the wife, and as to whether or not the defendant had wilfully neglected to provide adequate support for wife and child or children. To these issues the jury responded that defendant was the father of the child Jimmie, that his wife had not committed adultery, and to the issue of non-support of wife and child or children the jury answered in both instances "Yes--Guilty." It appears from the record that the jury was instructed that the burden of proof was on the State to satisfy the jury from the evidence beyond a reasonable doubt of the guilt of the defendant as charged in the warrant, as well as in respect of each of the elements necessary to constitute the offense.

The defendant excepted to the submission of written issues to the jury and assigns error in the action of the court in so doing. In criminal actions, except in cases of special verdicts, or upon questions involving the sanity of the defendant, or where the question of paternity is involved in...