State v. HallState v. Hall
- Reporters:
- , ,
- Before:
- ParkeR
Thе State’s evidence tends to show the following facts: Defendant and Lillie Cash were mаrried on 7 July 1957. They lived together for about six months, and separated around 15 January 1958. About six weeks after 15 January 1958 defendant’s wife saw him on the street, and told him she was pregnant. Defеndant asked her what color it was, black or white? That is the only conversation she hаd with him from the date of separation, until the latter part of November or the first of December 1958. The wife gave birth to a ohild on 4 October 1958. Defendant is the father of the child. About the last of November or the first of December 1958 defendant came to his wife’s hоuse, and looked at the ohild in a crib. Defendant has provided no support for the child/, since his birth. He is regularly employed, and earns about $65.00 a week.
There is no evidence in the record defendant knew or had any notice on .the date of the issuаnce of the warrant, to wit, 3 November 1958, and prior thereto, that his wife bad given birth to a livе child and the child was living, unless such an inference can be fairly drawn from his wife’s telling him on the strеet she was pregnant some six weeks after their separation on 15 January 1958. It is a fаct of common .and general knowledge that pregnant women sometimes miscarry, sometimes have stillbirths, and that sometimes children bom alive die very shortly after birth. In our opinion, the wife’s statement on the street to the defendant about six weeks after their sеparation on 15 January 1958 [that she was pregnant, does not permit the fair inference that defendant knew or had notice on 3 November 1958, the date of issuance оf .the warrant, .and prior thereto, that ‘his wife had given birth to a live child that lived.
In criminal prоcedure a person can only be punished for an offense he has committed — never for .an offense he may commit in the future. “The charge must be supported by thе facts .as they existed at the time it was formally laid in the court, and cannot be supported by evidence of wilful failure supervening between the time the charge was mаde and the time of trial — at least, when the trial is had, as it was here, upon the original wаrrant.” S. v. Summerlin, 224 N.C. 178, 29 S.E. 2d 462, a case where defendant was charged with wilfully refusing to provide support fоr his bastard child.
In a prosecution under G.S. 14-322 the failure by a defendant to provide adеquate support for his child must be wilful, that is, he intentionally and without just cause or excuse dоes not provide adequate support for his child according to his means and stаtion in life, and *213 this essential element of the offense must be alleged and proved. S. v. Lucas, 242 N.C. 84, 86 S.E. 2d 770; S. v. Carson, 228 N.C. 151, 44 S.E. 2d 721; Hyder v. Hyder, 215 N.C. 239, 1 S.E. 2d 540; S. v. Johnson, 194 N.C. 378, 139 S.E. 697; S. v. Smith, 164 N.C. 475, 79 S.E. 979.
Dеfendant’s assignment of error to the failure of the trial eou-rt to allow bis motion for judgment of nonsuit made at the close of the State’s evidence — the defendant ‘offered none — is sustained, for the reason that while the State has offered evidence tending to show that defendant is the father of ‘the Child, which his wife gave birth to on 4 October 1958, the State has introduced no evidence, so far as the record shows, nor is there an inference to be fairly deduced from the evidence offered, tending to show that dеfendant wilfully neglected and refused to provide adequate support for his child, in thаt there is no evidence in the record, nor any inference to be fairly dlrawn from the evidence offered, tending to show that on the date of the issuance of the original warrant, to’ wit, on 3 November 1958, and prior thereto, defendant had any knowledge or notice of the birth and existence of his child. S. v. Summerlin, supra.
G.S. 14-322 provides that the wilful neglect or refusаl of a father to provide adequate support for his child or children constitutеs “a continuing offense and shall not be barred by any statute of limitations until the youngest living child shаll arrive at the age of eighteen (18) years.”
It is to be clearly understood that in our сonsideration of the evidence on the motion for judgment of nonsuit, we have no opinion, and have expressed none, ‘as to whether defendant ‘is the father of Addie Allen Hall or has wilfully neglected and refused to provide adequate support for him. That question is for another day and (another forum, if the State decides to proceed further.
The manifest error as to the date of the offense alleged in the original warrant and the amended warrant demonstrates the necessity for the exercise of care in the drawing and amending of warrants. As ■to this error, see G.S. 15-155.
Reversed.
HiggiNS, J., not sitting.