Cases under our present bastardy act constantly present difficulties of construction, as to some of which the Court may not be wholly agreed. Many of these, no doubt, must be cleared up by legislative action before we have an unchallengeable procedure. The instant case is suggestive of many particulars in which the law might receive clarification, but in view of the rationale of our present decisions, anything we might say as to them would be obites dictum.
On this point we are agreed. Evidence on the part of the State fails to disclose one of the essential elements of the offense created by the statute and charged against the defendant — that of willfulness in the *353failure or neglect to support the illegitimate child. Neither paternity nor failure to support, nor both, without willfulness, is sufficient to convict. Upon this point the testimony of the mother, which is the evidence of the State, is to the effect that not only had she made no demand on defendant for support of the child, but that she had told him if he paid $20.00, there would be no more of it. This he had done. She thought she could care for the child as it ought to be cared for. Perhaps the defendant thought so too.
To make out a case evidence like that calls for rebuttal, and the State is never in position to rebut its own evidence.
There should have been judgment as of nonsuit. It is so ordered.
Eeversed.