Tidwell v. Booker, No. 37

Docket NºNo. 37
Citation290 N.C. 98, 225 S.E.2d 816
Case DateJune 17, 1976
CourtUnited States State Supreme Court of North Carolina

Page 816

225 S.E.2d 816
290 N.C. 98
Shirley T. TIDWELL
v.
David BOOKER.
No. 37.
Supreme Court of North Carolina.
June 17, 1976.

Hicks & Harris by Tate K. Sterrett, Charlotte, for plaintiff.

Reginald L. Yates, Charlotte, for defendant.

LAKE, Justice.

GS 49--2 provides that any parent, mother or father, who wilfully neglects or refuses to support his or her illegitimate child is guilty of a misdemeanor. This statute, in effect when Claudia Ann was conceived, imposed, both upon the plaintiff and the defendant, a duty to support the child. Its purposes is not to confer rights upon either the mother or the father but to protect the child and to protect the State against the child's becoming a public charge. Prosecution of the alleged father for the violation of this statute may be initiated by the mother, but her joining therein is not a prerequisite to the validity of the prosecution. GS 49--5. In such criminal proceeding, '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.' GS 49--7 (Emphasis added.)

In 1963, upon a warrant valid in form, in a court of competent jurisdiction, the defendant was charged with violation [290 N.C. 107] of GS 49--2 by his failure and refusal to provide support for Claudia Ann, then one month old. Despite his plea of 'not guilty' that court found as a fact that the defendant is the father of Claudia Ann and found the defendant guilty of the offense of failure or refusal to support the child.

The 1963 judgment recites, parenthetically, that the defendant admitted he was the child's father, which statement the defendant now asserts was incorrect. The judgment does not rest upon this statement but upon the court's finding of his paternity as a fact despite his plea of not guilty. Neither the judgment nor the record presently before us gives any indication as to the nature or evidence of the alleged admission, whether it was in the course of testimony by the defendant or otherwise. Such admission is not inconsistent with his plea of 'not guilty,' for the criminal offense is not committed by the begetting but by the wilful nonsupport of the child. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

From the 1963 judgment the defendant did not appeal. On the contrary, the

Page 822

judgment recites that he consented to the terms upon which sentence was suspended. The defendant now asserts that this judgment was and is invalid because he was then an indigent and counsel was not appointed to represent him. Nothing in the record before us supports his contention that he was an indigent in 1963. In State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970), this Court held that the offense of which this defendant was so convicted in 1963 is of such a nature that appointment of counsel for, or intelligent waiver thereof by, an indigent defendant is not required by the Sixth and Fourteenth Amendments to the United States Constitution. The defendant having failed to appeal therefrom, the judgment in the 1963 criminal action is deemed valid.

The criminal offense of wilful nonsupport of an illegitimate child by a parent of the child may be repeated and, if it is, prosecution 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 in the former criminal action, need not be re-litigated, that question being Res judicata. State v. Ellis, supra. In the two criminal actions there is identity of parties and identity of this issue. It is immaterial[290 N.C. 108] whether the same person swore out the two warrants. It is also immaterial whether the same witnesses testified at the two trials.

GS 49--14 authorizes the bringing of a civil action to establish the paternity of an illegitimate child within three years after the last payment by the alleged father for the support of the child. The present action was brought within that time. In such civil action, just as in a criminal action brought under GS 49--2, paternity must be proved beyond a reasonable doubt. GS 49--14(b). Such proceeding may be instituted by the mother. GS 49--16(1). 'Upon and after the establishment of paternity of an illegitimate child Pursuant to G.S. 49--14, the rights, duties, and obligations of the mother and the father so established, with regard to support and custody of the child, shall be the same, and may be determined and enforced in the same manner, as if the child were the legitimate child of such father and mother.' GS 49--15. (Emphasis added.) The defendant contends that this statute requires a determination of the question of paternity in the civil action and that, on the issue of paternity, he was entitled to a jury trial, having demanded such trial in his answer.

It is, unquestionably, the general rule in this jurisdiction that, in a civil action for damages, evidence of the defendant's conviction in a criminal prosecution for the very acts which constitute the basis of the alleged liability in the civil action is not admissible, the defendant having entered a plea of 'not guilty' in the criminal action. Beanblossom v. Thomas, 266 N.C. 181, 146 S.E.2d 36 (1966). As Justice Parker, later Chief Justice, said in Trust Co. v. Pollard, 256 N.C. 77, 123 S.E.2d 104 (1961): 'The general and traditional rule supported by a great majority of the jurisdictions is that, in the absence of a statutory provision to the contrary, evidence of a conviction and of a judgment therein, or of an acquittal, rendered in a criminal prosecution, is not admissible in evidence in a purely civil action to establish the truth of the facts on which the verdict of guilty or of acquittal was rendered, or when there is a verdict of acquittal to constitute a bar to a subsequent civil action based on the same facts. While the same facts may be involved in two cases, one civil and the other criminal, the parties are necessarily different, for, whereas one action is prosecuted by an individual, the other is maintained by the state.'

[290 N.C. 109] In Taylor v. Taylor, 257 N.C. 130, 125 S.E.2d 373 (1962), this doctrine was somewhat limited, over the dissent of Justice Higgins. There the Court held a prior conviction of a husband on the charge of wilful abandonment of his wife without providing adequate support for her is a bar to his subsequent action for absolute divorce on the ground of the separation arising from

Page 823

such abandonment. Justice Bobbitt, later Chief Justice, speaking for the majority, said: 'Technically, the parties in the criminal prosecution were different. Even so, the issue was identical, and the plaintiff, in the criminal action, had his day in court with reference to such issue. * * * While the conduct for which plaintiff was convicted constitutes an offense against society, such conduct was made criminal to afford protection to the wilfully abandoned wife. In such criminal prosecution, the wife, although not technically a party, is the person upon whose testimony the State, in large measure, must rely; and the criminal prosecution is based on and arises from the rights and obligations subsisting between the prosecutrix (wife) and the defendant (husband).' The basis for the dissent by Justice Higgins was: 'The first requisite to a valid plea of Res judicata is identity of parties. (Citations omitted.) In the criminal case the State of North Carolina was the plaintiff. Mrs. Taylor may have been a witness, but she was not a party. Res judicata binds parties--not witnesses.'

In virtually all, if not all, cases in which a civil action for damages grows out of criminal conduct of the defendant the purpose of the criminal statute is to discourage conduct likely to cause injury to the class of persons to which the plaintiff in the civil action belongs. For example, the statutes making speeding, driving on the wrong side of the road and driving while intoxicated (see Beanblossom v. Thomas, supra) criminal offenses are designed to protect other users of the highway from injury to their persons and damage to their property. Usually, the injured person, if he or she survives, is the principal witness for the State in a criminal prosecution. The present case, the Taylor case and the Beanblossom case cannot be distinguished on these grounds. Furthermore, in the prosecution of a parent for nonsupport of an illegitimate child, the State is acting, at least in part, for the protection of its own financial interest since it thereby seeks to prevent the child from becoming a public charge.

[290 N.C. 110] This Court has said on numerous occasions that the question of paternity is 'incidental to the prosecution for the crime of nonsupport.' State v. Green, supra; State v. Ellis, supra; State v. Robinson, supra; State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462 (1944). The question of paternity is 'incidental' to the criminal offense alleged only in the sense that proof of paternity is not proof of wilful nonsupport of the child. An affirmative answer to the question of paternity is, however, an indispensable prerequisite to the defendant's conviction on the criminal charge. GS 49--7. The finding by the court in the criminal action that the defendant is the father of Claudia Ann was, therefore, not a mere dictum or the determination of an insignificant matter. It was the judicial determination of an issue properly and necessarily before the court in the criminal proceeding to which the defendant was a party and in the trial of which he had his 'day in court.' The same may, however, be said of the questions of speeding, driving on the wrong side of the road and driving under the influence of intoxicating liquor which were involved...

To continue reading

Request your trial
51 practice notes
  • Flippin v. Jarrell, No. 102
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 7, 1980
    ...and presumably is fulfilling his responsibility. In contrast, the mother's duty to provide child support is secondary. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976). The mother does, however, have an obligation to support her child when the father fails in whole or in part to do so.......
  • Loomis, In re, No. 20226
    • United States
    • Supreme Court of South Dakota
    • November 18, 1998
    ...(1990)(superseded by statute in other respects); Commonwealth v. Chase, 385 Mass. 461, 432 N.E.2d 510, 516-17 (1982); Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816, 827 (1976)(superseded by statute in other respects). See also Matchett v. Dunkle, 244 Neb. 639, 508 N.W.2d 580, 583 ¶37 Most ......
  • Fieldcrest Cannon, Inc. v. Fireman's Fund Ins. Co., No. COA95-721
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • November 5, 1996
    ...in any other proceeding outside of the one pending. See Tidwell v. Booker, 27 N.C.App. 435, 219 S.E.2d 648 (1975), rev'd on other grounds, 290 N.C. 98, 225 S.E.2d 816 (1976)(finding that Rule 36(c) of the North Carolina Rules of Civil Procedure prevented the finding of paternity in a 1963 j......
  • Wake County ex rel. Carrington v. Townes, No. 8010DC1024
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • September 15, 1981
    ...Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Moreover, the County contends, based on Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976), that the civil adjudication of paternity would not be res judicata in a subsequent criminal proceeding and that defendant ......
  • Request a trial to view additional results
51 cases
  • Flippin v. Jarrell, No. 102
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 7, 1980
    ...and presumably is fulfilling his responsibility. In contrast, the mother's duty to provide child support is secondary. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976). The mother does, however, have an obligation to support her child when the father fails in whole or in part to do so.......
  • Loomis, In re, No. 20226
    • United States
    • Supreme Court of South Dakota
    • November 18, 1998
    ...(1990)(superseded by statute in other respects); Commonwealth v. Chase, 385 Mass. 461, 432 N.E.2d 510, 516-17 (1982); Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816, 827 (1976)(superseded by statute in other respects). See also Matchett v. Dunkle, 244 Neb. 639, 508 N.W.2d 580, 583 ¶37 Most ......
  • Fieldcrest Cannon, Inc. v. Fireman's Fund Ins. Co., No. COA95-721
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • November 5, 1996
    ...in any other proceeding outside of the one pending. See Tidwell v. Booker, 27 N.C.App. 435, 219 S.E.2d 648 (1975), rev'd on other grounds, 290 N.C. 98, 225 S.E.2d 816 (1976)(finding that Rule 36(c) of the North Carolina Rules of Civil Procedure prevented the finding of paternity in a 1963 j......
  • Wake County ex rel. Carrington v. Townes, No. 8010DC1024
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • September 15, 1981
    ...Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Moreover, the County contends, based on Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976), that the civil adjudication of paternity would not be res judicata in a subsequent criminal proceeding and that defendant ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT