State v. Hiatt, 211 N.C. 116 (1937)

Jan. 6, 1937 · Supreme Court of North Carolina

211 N.C. 116

STATE v. FLAY HIATT.

(Filed 6 January, 1937.)

Criminal Law § 68b — Defendant may appeal only from conviction or from prejudicial judgment final in its nature.

In this prosecution under ch. 228, Public Laws of 1933, the jury answered the issues submitted in writing without objection that defendant was the father of prosecutrix’ bastard child, but that he had not willfully failed and refused to support said child. Defendant appealed, alleging error in the overruling of his pleas in abatement and in the court’s refusal to set aside the answer to the first issue. Seld: The Supreme Court has no jurisdiction of the appeal and same is dismissed, since the right of appeal is statutory, C. S., 4650, and the statute gives no right of appeal by defendant from an acquittal, and whether the answer to the first issue will be conclusive on defendant or evidence against him in a subsequent action, civil or criminal, cannot be determined on the appeal.

Appeal by defendant from Rousseau, J., at June Term, 1936, of DavidsoN.

Dismissed.

Tbe defendant was tried at June Term, 1936, of tbe Superior Court of Davidson County on a warrant issued by tbe recorder’s court of tbe city of Tbomasville, on 6 September, 1935. Tbe warrant was issued on tbe affidavit of Mamie Dennis, wbo complained and said tbat tbe defendant, on or about 17 December, 1934, and thereafter, at and in tbe city of Tbomasville, in Davidson County, North Carolina, did unlawfully and willfully fail, neglect, and refuse to support and maintain an illegitimate child which be bad begotten on tbe body of tbe said Mamie Dennis, and which was born on 17 December, 1934, in violation of tbe provisions of chapter 228, Public Laws of North Carolina, 1933.

After bis plea in abatement and bis motions tbat tbe action be dismissed on grounds appearing in tbe record bad been denied by tbe court, tbe defendant entered a plea of not guilty. Tbe defendant duly excepted to tbe denial of bis plea in abatement and to tbe refusal of tbe court to allow bis motions tbat tbe action be dismissed.

Tbe court submitted to the jury two issues, in writing, which were answered as follows:

“1. Is tbe defendant tbe father of tbe bastard child of Mamie Dennis, which was born on or about 17 December, 1934? Answer: £Yes.’

' “2. Has tbe defendant willfully failed and refused to support and maintain said child, as alleged? Answer: No.’”

Tbe jury returned a verdict of not guilty. In apt time, tbe defendant moved tbe court to set aside tbe answer to tbe first issue and for a new trial of said issue. Tbe motion was denied, and defendant excepted and appealed to tbe Supreme Court, assigning as error the refusal of the court to sustain his plea in abatement, and to allow his motions that the action be dismissed, and that the answer to the first issue be set aside.

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

Don A. Walser for defendant.

CoNNOR, J.

This appeal is dismissed on the authority of S. v. Rooks, 207 N. C., 275, 176 S.E., 752. In the opinion in that case it is said:

“It is provided by C. S., 4650, that the defendant shall have the right to appeal in case of conviction in the Superior Court for any criminal offense. Appeals in criminal cases are controlled by statutes on the subject; and it was said in S. v. Webb, 155 N. C., 426, 70 S. E., 1064, that ‘an ordinary statutory appeal will not be entertained except from a final judgment on conviction, or from some judgment in its nature final.’ ”

In the instant ease, the defendant was not convicted; he was acquitted. There was no judgment on conviction, or judgment prejudicial to the defendant in its nature final. The defendant therefore had no right to appeal to this Court. This Court is without jurisdiction to entertain the appeal, or to decide the questions presented by defendant’s assignments of error.

Whether or not the defendant’s apprehension that the 'answer to the first issue appearing in the record will be conclusive on defendant or evidence against him, upon the trial of an issue involving his paternity of the child of Mamie Dennis, in some subsequent action, civil or criminal, -to which the defendant is a party, is well founded cannot be determined on this appeal. The defendant did not object to the submission of issues in writing to the jury. These issues involved the essential elements of the offense with which the defendant was charged. S. v. Spillman, 210 N. C., 271, 186 S. E., 322. See section 6, chapter 228, Public Laws of North Carolina, 1933. The appeal is

Dismissed.