On this appeal three questions for decision are presented as to (1) denial of motions for judgment as of nonsuit, (2) alleged improper cross-examination, and (3) alleged error in the charge. However, prejudicial error is not shown.
(1) As to denial of motions, aptly made, for judgment as of nonsuit: G.S. 49-2 declares that “Any parent who willfully neglects or who refuses to support and maintain his or her illegitimate child shall be guilty of a misdemeanor . . .”
The Only prosecution contemplated under this statute is grounded on the willful neglect or refusal of a parent to support his or her illegitimate child,- — the mere begetting of the child not being denominated a crime. *376 S. v. Dill, 224 N.C. 57, 29 S.E. 2d 145; S. v. Stiles, 228 N.C. 137, 44 S.E. 2d 728; S. v. Bowser, 230 N.C. 330, 53 S.E. 2d 282; S. v. Thompson, 233 N.C. 345, 64 S.E. 2d 157; S. v. Robinson, 236 N.C. 408, 72 S.E. 2d 857.
Tbe question of paternity is incidental to tbe prosecution for tbe crime of nonsupport. S. v. Summerlin, 224 N.C. 178, 29 S.E. 2d 462; S. v. Bowser, supra; S. v. Stiles, supra; S. v. Thompson, supra; S. v. Robinson, supra.
Moreover, tbis statute, as interpreted by tbis Court, creates a continuing offense. S. v. Johnson, 212 N.C. 566, 194 S.E. 319; S. v. Bradshaw, 214 N.C. 5, 197 S.E. 564; S. v. Davis, 223 N.C. 54, 25 S.E. 2d 164; S. v. Robinson, supra.
(For full discussion of continuing offense, special reference is made to opinion by Barnhill, J., in S. v. Johnson, supra.) And in order to convict a defendant father under tbis statute, G-.S. 49-2, it is beld by tbe Court that tbe burden is on tbe State to show not only tbat be is tbe father of tbe child, and tbat be has neglected or refused to support and maintain it, but further tbat bis neglect or refusal is willful, tbat is, intentionally done “without just cause, excuse or justification” after notice and request for support. S. v. Sharpe, 234 N.C. 154, 66 S.E. 2d 655; S. v. Hayden, 224 N.C. 779, 32 S.E. 2d 333, and cases cited. See also S. v. Stiles, supra; S. v. Ellison, 230 N.C. 59, 52 S.E. 2d 9; S. v. Thompson, supra.
Tbe charge in tbe warrant or bill of indictment, as stated in S. v. Summerlin, supra, opinion by Seawell, J., “must be supported by tbe facts as they existed at tbe time it was formally laid in tbe court, and cannot be supported by evidence of willful failure supervening between tbe time tbe charge was made and tbe time of trial, — at least when tbe trial is bad . . . upon tbe original warrant.” See also S. v. Thompson, supra.
In tbe light of these principles, tbe evidence offered by tbe State, as shown in tbe case on appeal, is sufficient to take tbe case to tbe jury on tbe issue of paternity, and to support a finding by tbe jury, beyond a reasonable doubt, tbat defendant is tbe father of tbe child as charged.
And taking tbe evidence in tbe light most favorable to tbe State, it is sufficient to take tbe case to tbe jury and to support a finding by tbe jury, beyond a reasonable doubt, tbat defendant has failed to support tbe child between tbe date of its birth, 27 January, 1953, and tbe date tbe bill of indictment was found by tbe grand jury, March Term, 1953. See S. v. Love, ante, 283.
Tbe State’s evidence tends to show, and defendant admits tbat be has not supported tbe child at any time. But defendant contends tbat tbe only evidence of a demand on him for support for tbe child is tbe letter written by tbe prosecutrix after tbe birth of tbe child, and tbat there is *377no evidence that this letter was written before or after the^bill of indictment was found.
However, the circumstances shown in the evidence in respect to this letter are sufficient to support an inference by the jury that it was written before the bill of indictment was laid. The charge relates to previous conduct of defendant and that was what the trial was about. And the case on appeal shows that prosecutrix, under cross-examination by one of the attorneys for defendant, was shown three letters, one of which she testified was the letter she wrote defendant after the birth of her child asking support for it. And it appears that defendant admitted that he received the letter. But the letter was not offered in evidence. These circumstances support a plain inference that the letter was written before the finding of the bill of indictment.
(2) The matter of the cross-examination relates to the question the solicitor asked defendant, if the reason he did not have the blood test was because he knew the baby was his. Under the circumstances shown, the question was within the bounds of fair cross-examination. Defendant had made a motion for a blood test, and none was made. So, why not ?— is a reasonable and natural reaction. No question is raised as to the result of a blood test. Therefore, the legal principles relating to the purpose and value of a blood test are not relevant. Hence, in this question error is not made to appear.
(3) Now as to the charge: Numerous exceptions are taken to the charge. But a reading of the entire charge seems to present the case fairly and squarely to the jury in the light of the evidence and the applicable principles of law.
While the court did not submit written issues as in S. v. Love, ante, 283, the charge gave to the jury clear instructions in this respect.
In the judgment below, we find
No error.