10 N.C. App. 734 | N.C. Ct. App. | 1971
The defendant contends that when the evidence is considered in the light most favorable to the State it fails to disclose that his failure to adequately support his five children was wilful, and that his motion for judgment as of nonsuit ought to have been allowed.
In State v. Hall, 251 N.C. 211, 110 S.E. 2d 868 (1959), Parker, J., later C.J., stated:
“In a prosecution under G.S. 14-322 the failure by a defendant to provide adequate support for his child must be wilful, that is, he intentionally and without just cause or excuse*736 does not provide adequate support for his child according to his means and station in life, and this essential element of the offense must be alleged and proved.”
In the instant case there is not one scintilla of evidence in the record that the defendant is employed, or that he owns any property, or has any income or any ability whatsoever to contribute to the support of his children; nor is there any evidence that the defendant has failed to apply himself to some honest calling for the support of himself and family, or that he is a frequenter of drinking houses, or is a known common drunkard, so as to bring the case within the presumption raised by G.S. 14-323. The record is devoid of evidence from which the jury might infer that the defendant wilfully or intentionally failed to discharge his obligation to support his children. The defendant’s motion for judgment as of nonsuit should have been allowed.
Another serious error appears on the face of the record. The judgment appealed from imposed a jail sentence of eighteen months. G.S. 14-322 provides for the first violation of the statute a fine not exceeding five hundred dollars or imprisonment not exceeding six months, or both, in the discretion of the court.
Since a parent’s wilful failure or refusal to provide adequate support for his children is a continuing offense, and is not barred by any statute of limitations until the youngest child shall have reached the age of eighteen years, the State may, if it is so advised, institute another prosecution of the defendant. The judgment appealed from is reversed.
Reversed.