State v. Morris, 208 N.C. 44 (1935)

March 20, 1935 · Supreme Court of North Carolina

208 N.C. 44

STATE v. JEROME MORRIS.

(Filed 20 March, 1935.)

1. Criminal Law h g—

The State may appeal from judgment for defendant upon a special verdict, upon a demurrer, upon a motion to quash, or upon arrest of judgment. N. O. Code, 4649.

2. Bastards B c — Bastardy Act is repealed in toto by Act of 1933.

The old bastardy act is repealed in toto by ch. 228, Public Laws of 1933, the provisions of sec. 2 that the Act of 1933 should not affect pending litigation or accrued actions being repugnant to tbe specific repealing clause of sec. 9, and in a prosecution under tbe Act of 1933 a demurrer on tbe grounds tbat proceedings under tbe old bastardy act were then pending should be overruled. O. S., 265, et seq.

3. Same—

In a prosecution under cb. 228, Public Laws of 1933, it is immaterial when tbe illegitimate child was begotten, tbe offense under tbe act being tbe wilful neglect or refusal to support and maintain an illegitimate child born after tbe ratification of tbe act.

Appeal by tbe State from Barnhill, J., at October Term, 1934, of Lee.

Reversed.

Tbe judgment of tbe court below is as follows: “Tbis criminal action coming on to be beard before tbe undersigned at tbis tbe October Term, 1934, of Lee Superior Oourt, upon tbe motion filed by tbe defendant, as will appear of record, and upon tbe bearing of tbe same it is agreed between tbe State and tbe defendant tbat tbe following are tbe pertinent facts herein, to wit: Tbat on 14 February, 1933, Mabel Hooker, then being pregnant with child, instituted proceedings under tbe old bastardy statute as it existed prior to tbe Act of 1933; tbat upon tbe bearing in said action it was adjudged tbat tbe defendant was tbe putative father of said child, and judgment was entered accordingly, for $150.00 for maintenance of said child; tbat tbe defendant appealed from said judgment to tbe Superior Court; tbat said child was born on 11 May, 1933; tbat on 29 September, 1934, tbe said Mabel Hooker procured tbe issuance of a warrant under tbe terms of chapter 228, Public Laws of 1933, against tbe defendant, charging him -with tbe crime of having wilfully neglected, failed, and refused to support bis bastard child, as set out in said warrant, tbis cause being tbe cause as instituted by said warrant; tbat on 12 October, 1934, tbe defendant attempted to withdraw bis appeal from tbe original judgment in tbe bastardy proceedings, same having been undertaken before tbe clerk, and not tbe judge presiding; tbat tbe defendant has never complied with'tbe original judgment in tbe bastardy proceedings, but is now in jail under order issued by tbe magistrate after tbe defendant attempted to withdraw bis said appeal. Upon tbe foregoing agreed facts, tbe court is of tbe opinion tbat tbe proviso in section 2 of chapter 228, Public Laws of 1933, 'that tbe provisions of tbis act shall not apply to pending litigation or accrued actions,’ exempts tbis defendant from prosecution under tbe Act of 1933; it is therefore ordered and adjudged tbat tbis action be and tbe same is dismissed from tbe docket. M. V. Barnhill, Judge presiding.”

To tbe foregoing judgment of dismissal, tbe State excepts and appeals to tbe Supreme Court. Tbe only exception and assignment of error on tbe part of tbe State is as follows: “His Honor erred when be rendered judgment as appears of record, sustaining one of defendant’s grounds of demurrer in bis plea in abatement, and in ordering and adjudging tbat tbis action be dismissed from tbe docket.”

Attorney-General Seawell and Assistant Attorney-General Ailcen for the State.

E. L. Gavin for defendant.

OlaeKSON, J.

Tbe State is limited to appeals under N. 0. Code 1931 (Micbie), sec. 4649, as follows: “An appeal to tbe Supreme Court may be taken by tbe State in tbe following cases^ and no other. Wbere judgment has been given for tbe defendant — (1) Upon a special verdict. (2) Upon a demurrer. (3) Upon a motion to quash. (4) Upon arrest of judgment.”

Public Laws of North Carolina, Session 1933, cb. 228, sec. 1, is as follows: “Any parent who wilfully neglects or who refuses to support and maintain bis or her illegitimate child shall be guilty of a misdemeanor and subject to such penalties as are hereinafter provided. A child within tbe meaning of tbis act shall be any person less than ten years of age and any person whom either parent might be required under tbe laws of North Carolina to support and maintain if such child were tbe legitimate child of such parent.” S. v. Cook, 207 N. C., 261.

Section 2 is as follows: “Tbe provisions of tbis act shall apply whether such child shall have been begotten or shall have been born within or without the State of North Carolina: Provided, that the child to be supported is a hona fide resident of this State at the time of the institution of any xoroceedings under this act: Provided, the provisions of this act shall not apply to pending litigation or accrued actions.”

Section 9 is as follows: “All acts or parts thereof inconsistent with the provisions of this act are hereby repealed. In particular, the following sections of the Consolidated Statutes of North Carolina are hereby repealed: Sections 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 1632, subsec. 1.”

Section 265, supra, is as follows: “Justices of the peace of the several counties have exclusive original jurisdiction to issue, try, and determine all proceedings in eases of bastardy in their respective counties. A warrant in bastardy shall be issued only upon the voluntary affidavit and complaint of the mother of the bastard; or upon the affidavit of one of the county commissioners, setting forth the fact that the bastard is likely to become a county charge.” This section 265, supra, and the other sections cover the entire field of the old bastardy act, which was a civil action.

Tbe Act of 1933 was intended to coyer tbe entire subject dealing with bastardy, and will work a repeal of all tbe former bastardy acts. Lassiter v. Commissioners, 188 N. C., 379 (383). In fact, tbe repealing clause of tbe new act clearly repeals tbe old act. Section 9 of tbe act says: “In particular” (section 265, ei seq., supra,) “are hereby repealed.” By a repeal of these sections tbe very cornerstone of tbe old bastardy act is knocked out, and tbe new act becomes operative. We think tbe sections 2 and 9 are not reconcilable and tbe old bastardy act in toto is repealed. We think tbe questions presented by this appeal have been decided adversely to tbe position taken by tbe defendant in tbe cáse of S. v. Mansfield, 207 N. C., 233.

Tbe Act of 1933, cb. 228, was ratified 6 April, 1933. Tbe child was born 17 May, 1933, after tbe ratification of tbe act. In S. v. Mansfield, supra, at p. 236, we said: “It is immaterial when tbe child was begotten. It was born after tbe passage of tbe act, and tbe offense is tbe wilful neglect or refusal to support and maintain bis or her illegitimate child.”

Tbe judgment of tbe court below is

Reversed.