State v. Parker, 209 N.C. 32 (1935)

Dec. 11, 1935 · Supreme Court of North Carolina

209 N.C. 32

STATE and ROXIE ROYAL v. BILL PARKER.

(Filed 11 December, 1935.)

1. Oriminal Law L g—

The State may appeal in criminal prosecutions from judgment for defendant upon a special verdict, upon a demurrer, upon a motion to quash, and upon arrest of judgment. O. S., 4649.

2. Bastards B c—

A parent may be prosecuted under N. O. Code, 276 (a) for willful failure to support his illegitimate child begotten and born before the effective date of the statute, the offense being the willful failure to support an illegitimate child, and it being sufficient if such willful failure occur after the effective date of the statute.

3. Indictment O a—

The court may not adjudge the defendant not guilty upon sustaining defendant’s demurrer to the indictment, the defendant Being entitled only to his discharge upon judgment sustaining his demurrer.

Devin, J., took no part in the consideration or decision of this case.

Appeal by the State and Roxie Royal from Grady, J., at August Term, 1935, of Sampson.

Reversed.

This is a criminal action, brought against the defendant in the recorder’s court of Sampson County, N. C. It was a charge under N. O. Code, 1935 (Michie), see. 276 (a) — “Any parent who willfully neglects or who refuses to support or maintain his or her illegitimate child shall be guilty of a misdemeanor,” etc.

The above act was ratified on 6 April, 1933. Public Laws 1933, ch. 228, sec. 12. Roxie Royal gave birth to an illegitimate child on 8 February, 1933, prior to the ratification of the act on 6 April, 1933, and charged defendant with the paternity of the illegitimate child.

The record discloses: “Hon. R. L. Herring, judge of the recorder’s court, tried said case on 25 April, 1935, and the defendant having demurred to said warrant, said recorder rendered judgment in favor of the defendant, sustaining said demurrer,” etc.

The judgment of the recorder’s court is as follows: “The defendant, through his counsel, having entered a demurrer to the said indictment, and the court being of the opinion that the criminal offense charged in said indictment cannot be maintained under the provisions of chapter 228 of the Public Laws of 1933, which was ratified on 6 April, 1933, the demurrer of the defendant is sustained, and the defendant is discharged. This 25 April, 1935. Richard L. Herring, Recorder.”

From the foregoing judgment the State and prosecutrix excepted, assigned error, and appealed to the Superior Court.

The case came on for hearing before Grady, J., who rendered tbe judgment, in part: “Upon tbe law as it is understood by tbe court, it is ordered and adjudged that tbe defendant is not guilty, and tbe judgment of tbe recorder is affirmed. Tbis 15 August, 1935. Henry A. Grady, Judge presiding.”

Tbe State and Eoxie Eoyal excepted, assigned error to tbe judgment, and appealed to tbe Supreme Court.

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

Butler & Butler for Roxie Royal.

Fair cloth & Fisher and F. D. Herring for defendant.

Clarkson, J.

N. C. Code, 1935 (Micbie), section 4649, is as follows : “An appeal to tbe Supreme Court may be .taken by the State in tbe following cases, and no other. Where tbe 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.”

In tbe recorder’s court of Sampson County tbe defendant demurred to tbe charge set out in tbe warrant. Tbe judge of tbe recorder’s court sustained tbe demurrer. Tbe State appealed to tbe Superior Court on tbe demurrer. Tbe judgment of tbe recorder was affirmed and tbe defendant ordered and adjudged not guilty. Tbe State then appealed to tbe Supreme Court. Tbe illegitimate child was begotten and born before tbe passage of tbe act — 6 April, 1933 — but tbe charge by tbe State is that be willfully neglected and refused, after tbe passage of tbe act, to support bis illegitimate child.

In State v. Mansfield, 207 N. C., 233 (236), speaking to tbe subject, it is said: “It is immaterial when tbe child was begotten. It was born after tbe passage of tbe act and tbe offense is tbe willful neglect or refusal to support and maintain bis or her illegitimate child. See S. v. Cook, post, 261; S. v. Henderson, post, 258.” State v. Morris, 208 N. C., 44.

Tbe present charge is defendant’s willful neglect or refusal to support bis illegitimate child after tbe passage of tbe act — it is immaterial when tbe child was begotten or born. Tbe court below “ordered and adjudged that tbe defendant is not guilty.” Tbis could not be done upon a demurrer.

For tbe reasons given, tbe judgment of tbe court below is

Eeversed.

Devin, J., took no part in tbe consideration or decision of tbis case.