State v. Tyson

• Decision Date: 22 May 1935
• Docket Number: 581.
• Citation: 180 S.E. 85,208 N.C. 231
• Parties: STATE v. TYSON.
• Court: North Carolina Supreme Court

180 S.E. 85

208 N.C. 231

STATE v. TYSON.

No. 581.

Supreme Court of North Carolina

May 22, 1935

Appeal from Superior Court, Anson County; Alley, Judge.

Proceedings by the State against Jasper Tyson on a warrant seeking support and maintenance of an illegitimate child. From a judgment on the warrant, defendant appeals.

Error.

Motion in arrest of judgment is proper only when some error or fatal defect appears on face of record.

This case came on to be heard by the superior court upon appeal from the Anson county criminal court upon the following affidavit and warrant, to wit "State of North Carolina, Anson County.

State v. Jasper Tyson.

Warrant.

Mary Robinson, Superintendent of Public Welfare being duly sworn complains and says that Sadie Bernice Richardson is a resident of Anson County and that she is now pregnant and that Jasper Tyson is the father of her illegitimate, unborn child and she prays the Court to issue a warrant of attachment for the body of the said Jasper Tyson that the paternity of her said unborn illegitimate child may be determined as provided in section 276-d (Laws of 1933, c 228, § 4), Supplement 1933, and that the said father may be held by the said Court to provide support and maintenance for the said child after its birth as is provided by law contrary to the form of the statute, and against the peace and dignity of the State.

Sworn to and subscribed before me this the 5th day of April, 1934.

Mary Robinson, Superintendent of Public Welfare.

R. E Little, Clerk of the Superior Court."

"State of North Carolina

To the Sheriff or Any Other Lawful Officer of Anson County-Greeting:

For the cause stated in affidavit hereto attached, you are hereby commanded forthwith to arrest Jasper Tyson and him safely keep, so that you have him before Anson County Criminal Court, at Wadesboro, N. C., forthwith to answer the above complaint, and be dealt with as the law directs.

Given under my hand and seal this the 5th day of April, 1934. R. E Little, Clerk of the Superior Court for the County of Anson, State of North Carolina."

The record discloses that at the close of the state's evidence the defendant moved for a judgment as of nonsuit, "stating that the chief ground in support of the motion is that the warrant failed to charge that the refusal to support the child was willful" and that thereupon "the solicitor for the state requests the court for permission to amend the warrant and put in the word 'willful,' and the court allows the amendment * * *."

The court submitted the following issues to the jury, both of which were answered in the affirmative, to wit:

"1. Is the defendant the father of the bastard child of Sallie Bernice Richardson?

2. Has the defendant willfully failed and refused to support and maintain said child, as alleged?"

Upon the coming in of the verdict the defendant moved in arrest of judgment ""* * * for that the warrant under which the defendant was indicted does not allege that the defendant willfully neglects or refuses to support and maintain his illegitimate child * * *." This motion in arrest of judgment was overruled, and the action of the court in so doing is made the basis of an exceptive assignment of error.

The court then proceeded to pronounce judgment...