State v. Tarlton

• Decision Date: 20 November 1935
• Docket Number: 506.
• Citation: 182 S.E. 481,208 N.C. 734
• Parties: STATE v. TARLTON.
• Court: North Carolina Supreme Court

182 S.E. 481

208 N.C. 734

STATE v. TARLTON.

No. 506.

Supreme Court of North Carolina

November 20, 1935

Appeal from Superior Court, Mecklenburg County; Sink, Judge.

LeRoy Tarlton was found guilty of willfully neglecting and refusing to support and maintain his illegitimate child, and he appeals.

Error.

The warrant on which defendant was indicted is as follows:

"State of North Carolina, County of Mecklenburg, Charlotte Township

Justice's Court

Before W. B. Warwick, Justice of the Peace.

The State v. LeRoy Tarlton

Criminal Action.

Avis King, being duly sworn, complains and says that at and in said County of Mecklenburg, Charlotte Township, on or about the 16th day of January, 1934, a baby was born to her out of wedlock and that the defendant above named is the father of said child, and that since the birth of said child the defendant has failed and refused to support or contribute to the support of said child and has failed and refused to pay any of the expenses in connection with the birth of said child all of which acts on the part of the defendant are unlawful and in violation of law and against the statutes in such cases made and provided and against the peace and dignity of the State, contrary to the form of the Statute and against the peace and dignity of the State.

Subscribed and sworn to before me, this the 24th day of Dec., 1934.

W. B Warwick, Justice of the Peace.

Miss Avis King."

J. D McCall, L. L. Caudle, and A. A. Tarlton, all of Charlotte for appellant.

A. A F. Seawell, Atty. Gen., and John W. Aiken and T. W. Bruton, Asst. Attys. Gen., for the State.

CLARKSON Justice.

The defendant is indicted under N.C. Code 1935 (Michie) § 276(a): "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. A child within the meaning of sections 276(a)-276(i) shall be any person less than ten years of age and any person whom either parent might be required under the laws of North Carolina to support and maintain if such child were the legitimate child of such parent." Public Laws 1933, c. 228, § 1. "The act of 1933 was intended to cover the entire subject dealing with bastardy, and will work a repeal of all the former Bastardy Act." State v. Morris, 208 N.C. 44, 47, 179 S.E. 19, 20.

The defendant was tried by the justice of the peace on the warrant above set forth and also in the superior court, where the jury found the defendant guilty.

The defendant made the following exception and assignment of error: "The defendant then moved for an arrest of judgment on the ground that the bill of indictment does not charge that the abandonment was willful, which motion was made after the verdict and motion to set the same aside had been made and denied by the Court. The State moved to be allowed by the Court to amend by inserting the words: 'That the defendant willfully failed and refused to support or contribute to the support of said child and had willfully refused to pay any of the expenses in connection with the birth of said child.' The motion of the Solicitor is allowed, the amendment shall be inserted in the warrant; whereupon the plea of defendant's counsel is denied, to which the defendant in apt time excepts." We think the exception and assignment of error made by defendant must be sustained. The statute under which defendant is charged says: "Any parent who willfully neglects or who refuses to support and maintain," etc., his illegitimate child. It nowhere charges that this is willfully done. This ingredient of the offense is material.

In State v. Cook, 207 N.C. 261, 262, 176 S.E. 757, it is said: "The father of an illegitimate child may be convicted of neglecting to support such child only when it is established that such neglect was willful, that is, without just cause,...