Tidwell v. Booker
Decision Date | 17 June 1976 |
Docket Number | No. 37,37 |
Citation | 290 N.C. 98,225 S.E.2d 816 |
Court | North Carolina Supreme Court |
Parties | Shirley T. TIDWELL v. David BOOKER. |
Hicks & Harris by Tate K. Sterrett, Charlotte, for plaintiff.
Reginald L. Yates, Charlotte, for defendant.
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 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 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 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):
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 such abandonment. Justice Bobbitt, later Chief Justice, speaking for the majority, said: The basis for the dissent by Justice Higgins was:
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.
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 in Beanblossom v. Thomas, supra. Thus, this is not a basis for distinction between the Taylor case, the Beanblossom case and the present case.
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