State v. McKee

Sharp, J.

The submission of interrogatories, or issues, in criminal prosecutions under G.S. 49-2 et seq. is now the approved practice with us, the questions and answers being- treated as a special verdict. State v. Ellis, 262 N.C. 446, 137 S.E. 2d 840. • The issues submitted, however, must necessarily present to the jury inquiries not only as to all the facts necessary to determine defendant’s guilt but also to establish the right of the State to prosecute him if defendant’s evidence challenges this right.

The wilful failure to support an illegitimate child less than 18 years of age is, by G.S. 49-2, made a misdemeanor. G.S. 49-4, however, permits the State to prosecute the putative father • within the following periods “and not thereafter”:

“1. Three years next after the birth of the child; or

“2. Where the paternity of the child has been judicially determined within three years next after its birth, at any time before the child attains the age of eighteen years; or

“3. Where the reputed father has acknowledged paternity of the child by payments for the support thereof within three years next after the birth of such child, three years from the date of the last payment whether such last payment was made within three years of the birth of such child or thereafter: Provided, the action is instituted before the child attains the age of eighteen years.”

The illegitimate child, Alicia, was born February 23, 1960. This prosecution was instituted December 31, 1965. Thus, it was not begun within three years next after her birth. Neither was her paternity judicially determined within that time. In order to maintain this prosecution, therefore, the State must meet the requirements of G.S. 49-4 (3), supra, and prove not only that defendant made payments for the child’s support within the three years next after her birth but also that the warrant was issued within three years from the date of the last payment.

Defendant, although he “assumes” that he is the father of Alicia, categorically denies that he has ever, at any time, contributed anything whatever to her support — neither money, clothes, food, nor anything else. In other words, he relies upon the State’s failure to prosecute him earlier to relieve him of his obligation to support Alicia. If the jury should find the facts in accordance with defendant’s testimony, his contention is correct and the action cannot be maintained. On the other hand, if the jury finds the facts in accordance with the prosecutrix’s testimony, defendant made payments for the child’s support during the first three years of her life and the warrant was issued within three years from the date of his last payment, $10.00 at Thanksgiving of 1964. The verdict, however, leaves unanswered the question whether defendant made any support payments for the child during the first three years of its life. The issue tendered by defendant would have established this material fact. A special verdict is defective if a material finding is omitted. “Such verdict must find sufficient facts to permit of the conclusion of law upon which the judgment rests.” State v. Ellis, supra at 451, 137 S.E. 2d at 845.

Defendant’s assignment of error based on his exception to the failure of the court to submit the tendered issue is sustained. There must be a

New trial: