State v. Womack , 251 N.C. 342 ( 1959 )

111 S.E.2d 332 (1959) 251 N.C. 342

STATE
v.
Jack WOMACK.

No. 442.

Supreme Court of North Carolina.

December 2, 1959.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. T. W. Bruton, for the State.

Charles W. Daniel and Jack Senter, Fuquay Springs, for defendant.

DENNY, Justice.

The only exceptions in the record are to the denial of the defendant's motion to dismiss as of nonsuit at the close of the State's evidence and renewed at the close of all the evidence, and to the signing of the judgment.

The only reference to any evidence taken in the trial below appears in the statement of case on appeal and reads as follows: "The prosecutrix in the Superior Court trial testified that her illegitimate child, by the alleged father, Jack Womack, defendant, was born February 18, 1959; that she first gave written notice and made demand of defendant for support of the said child on April 3, 1959, and that the same was the first and only notice and demand made by her upon defendant for support of said child; that issues set out in the record proper were submitted to the jury following this and other evidence."

The failure to support an illegitimate child is a continuing offense, and the date such child was born is immaterial provided the action is instituted within the time prescribed by statute, G.S. § 49-4, and that demand for the support of such child was made a reasonable time before the action was instituted. State v. Perry, 241 N.C. 119, 84 S.E.2d 329; State v. Chambers, 238 N.C. 373, 78 S.E.2d 209; State v. Thompson, 233 N.C. 345, 64 S.E.2d 157; State v. Oliver, 213 N.C. 386, 196 S.E. 325; State v. Johnson, 212 N.C. 566, 194 S.E. 319.

When the evidence adduced at the trial is not contained in the record, the appeal must be dismissed in the absence of error appearing upon the face of the record. Rule 19(4), Rules of Practice in the Supreme Court, 221 N.C. at page 556. State v. Griffin, 246 N.C. 680, 100 S.E.2d 49; State v. Powell, 238 N.C. 550, 78 S.E.2d 343; State v. Kirkland, 178 N.C. 810, 101 S.E. 560; State v. Tyson, 133 N.C. 692, 45 S.E. 838.

The evidence set out in the statement of case on appeal is not sufficient to enable this Court to pass on the merits of the motion for judgment as of nonsuit. Furthermore, the judgment is supported by the verdict and the exception thereto cannot be sustained. State v. Barham, 251 N.C. 207, 110 S.E.2d 894; State v. Ayscue, 240 N.C. 196, 81 S.E.2d 403; State v. Sloan, 238 N.C. 672, 78 S.E.2d 738; State v. Oliver, supra.

Appeal dismissed.