State v. Love , 238 N.C. 283 ( 1953 )

77 S.E.2d 501 (1953) 238 N.C. 283

STATE
v.
LOVE.

No. 3.

Supreme Court of North Carolina.

September 30, 1953.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

D. Emerson Scarborough, Yanceyville, for defendant appellant.

WINBORNE, Justice.

Defendant, on this appeal, raises basically two questions under his assignments of error predicated upon exceptions to denial of his motions for judgment as of nonsuit, as above set forth. (1) Conceding that there is sufficient evidence to go to the jury as to the issue of paternity, should this issue be determined in a "separate and distinct action" and by a "separate and distinct trial" from the issue as to willful nonsupport? And (2) the evidence disclosing that the child nursed at his mother's breast, is there sufficient evidence to take the case to the jury on the issue as to whether defendant willfully neglected or refused to support and maintain his child during the period of one month next after his birth?

I. As to the first question, this Court held in the case of State v. Spillman, 210 N.C. 271, 186 S.E. 322, that it is not necessary that defendant's paternity of the child should be first judicially determined, but that the State must prove on the trial, first defendant's paternity of the child, and then his willful neglect or refusal to support the child. See also State v. Bradshaw, 214 N.C. 5, 197 S.E. 564.

And a review of subsequent cases on the subject, considered by this Court, it is seen that in the trial of criminal prosecutions under the statute, referred to as "An act concerning the support of children of parents not married to each other", Chapter 49 of General Statutes, the practice has been, and is to submit to the jury issues, first, as to defendant's paternity of the child, and, secondly, as to willful neglect or refusal of defendant to support and maintain his child, and, a third, as to guilt of defendant. See State v. Hayden, 224 N.C. 779, 32 S.E.2d 333; State v. Stiles, 228 N.C. 137, 44 S.E.2d 728; State v. Ellison, 230 N.C. 59, 52 S.E.2d 9; State v. Bowser, 230 N.C. 330, 53 S.E.2d 282; State v. Robinson, 236 N.C. 408, 72 S.E.2d 857.

Indeed, in State v. Robinson, supra, only two issues were submitted to the jury, first, as to paternity, and second, as to nonsupport. The jury answered both issues in the affirmative, but did not return a verdict of guilty. On appeal to this Court the verdict on the first issue was permitted to stand. But since there was no verdict as to guilt of defendant on the fact found as to the offense charged, a new trial was ordered on the second issue, with instruction that if the issue be answered "Yes" the jury should return a verdict of guilty, or guilty as charged. This order was made solely for the reason stated, and not that there should be separate trials on the issues submitted.

In this connection the State aptly contends in brief filed that three issues are required to be submitted in a single case, and that the trial court should instruct the jury to consider them in the order in which they appear, that is: That the issue of paternity should be considered first. That if it be answered in the negative, the other issues would not be considered. But if answered in the affirmative, the jury would proceed to consider the second issue, as to willful nonsupport; that if it be answered in the negative, the answer to the third issue would be "not guilty". But if the first and second issues be answered in the affirmative, the jury would answer the third issue "guilty"; that is, the answer to the third issue would follow as a matter of law.

This argument is predicated upon proper instruction that the burden is upon the State to satisfy the jury beyond a reasonable doubt as to facts found. And it is not amiss to say that the issues may be submitted orally or in writing. However, to submit written issues would seem to be the better practice.

II. As to the second question: The statute, G.S. § 49-2, declares that "Any parent who wilfully neglects or who refuses to support and maintain his or her illegitimate child shall be guilty of a misdemeanor and subject to such penalties as are hereinafter provided." Defendant contends that "to support and maintain" as used in the statute means to provide food. Such meaning is too restrictive.

In 50 American Jurisprudence 870, speaking of the definition and nature of the term as it relates to support of persons, the author states: "Maintenance and support, it has been said, are not words of art, but have a relative meaning. The word ``support' is generally used to mean articles for the sustenance of persons, as food, clothing, and other conveniences. In some cases, the word ``support' will include medicines and medical services as necessaries."

This Court, too, has considered the meaning of the word "support". In Wall v. Williams & Robbins, 1885, 93 N.C. 327, the Court had under consideration a contract to furnish "plenty for to support" named persons. Ashe, J., writing for the Court said: "What does that mean? According to Webster it means ``maintenance, subsistence, or an income sufficient for the support of a family', and ``maintenance' means ``sustenance, support by means of supplies of food, clothing and other conveniences'. And this liberal construction of the word ``support', in its use with regard to persons, who have been contracted with for their maintenance was held in the case of Whilden v. Whilden, Riley, Eq. [S.C.] 205. We cite this case to show that support is held to mean something more than mere food."

To like effect is the decision in Clark v. Hay, 1887, 98 N.C. 421, 4 S.E. 190. There the Court, considering the meaning of the term "for the support of the family", held that it is confined to goods bought for the direct benefit of the members of the family, such as food, clothing and other necessaries.

And in State v. Clark, 234 N.C. 192, 66 S.E.2d 669, 671, opinion by Devin, C. J., speaking of the obligation of a husband to provide adequate support for his wife, had this to say: "Support as the word is used in the statute means personal support, maintenance; the supplying of food, clothing and housing suitable to their condition in life and commensurate with the defendant's ability; together with medical assistance reasonably required for the preservation of health."

The interpretation of the meaning of the term "support and maintain" as thus enunciated in decisions of this Court in regard to persons would seem appropriate in considering the meaning of the term as it is used in the statute under which defendant is convicted. G.S. § 49-2. Hence this Court holds that the obligation of a parent "to support and maintain his or her illegitimate child", within the purview of the statute G.S. § 49-2, is not restricted merely to providing food. It includes the supplying of food, clothing and other necessaries, "together with medical assistance reasonably required for the preservation of health" of the child. State v. Clark, supra. And this obligation to the child applies even in the case of a newly born baby.

Applying this principle of law to the case in hand, the evidence shown in the record is sufficient to support a finding by the jury, beyond a reasonable doubt, that defendant willfully neglected or refused to support and maintain his illegitimate child as charged in the warrant.

Hence in the judgment from which appeal is taken, there is

No error.