State v. Humphrey

73 S.E.2d 479 (1952) 236 N.C. 608

STATE
v.
HUMPHREY.

No. 655.

Supreme Court of North Carolina.

December 10, 1952.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Robert L. Emanuel, Member of Staff, Raleigh, for State.

F. D. Hackett, Jr., Lumberton, for defendant, appellant.

DEVIN, Chief Justice.

The defendant assigns error in the refusal of the trial court to allow his motion for judgment of nonsuit, chiefly on the ground that the State's evidence failed to show that before the issuance of the warrant the defendant after notice and demand wilfully failed and refused to support and maintain the child.

But we think the evidence sufficient to carry the case to the jury. The testimony of the child's mother tended to show not only that the defendant was the father of her child but also that after notice and demand for support of the child the defendant failed and refused to do so. The demand and refusal took place in March 1951, two months before the warrant was issued. True, the witness' mother related the circumstances of the demand on the defendant and his refusal to comply, and testified that this was in May. As the warrant was issued May 5, 1951, her testimony does not necessarily show that the demand upon the defendant for support of the child was made after the institution of the prosecution, but if it does have that implication it would only present a contradiction in the testimony which it was the province of the jury to resolve. The motion for judgment as of nonsuit was properly denied.

Defendant also assigns error in the portion of the charge hereinbefore quoted, on the ground that the court should have gone further and instructed the jury that there was no obligation upon the defendant to support the child until he was given notice that he was the father and demand made upon him for support, and that this was not supplied by evidence of a demand made subsequent to the indictment, citing State v. Summerlin, 224 N.C. 178, 29 S.E.2d 462; State v. Hayden, 224 N.C. 779, 32 S.E.2d 333; State v. Ellison, 230 N.C. 59, 52 S.E. 2d 9; State v. Sharpe, 234 N.C. 154, 66 S. E.2d 655.

This is the same question presented on the motion for judgment as of nonsuit. The State's evidence warranted the finding by the jury under the court's charge that notification to the defendant that he was the father of the child was given, that he admitted paternity and refused support in March 1951 before the warrant was issued. The court defined the meaning of the word "wilful" as used in the statute and charged the jury that they must be satisfied beyond a reasonable doubt that the defendant was the father of the child, and further that he knowingly, intentionally and with stubborn and wilful purpose neglected or refused to support the child before they could return verdict of guilty.

We think the jury fully understood the nature and essential elements of the offense charged, and that the evidence warranted the verdict and judgment.

In the trial we find no error.