297 N.C. 8 | N.C. | 1979
Lead Opinion
The defendant contends the trial court erred in denying her motion for a directed verdict of not guilty at the close of all of the
The trial judge correctly charged the jury that to convict the defendant of violating G.S. 115-166, the State must prove beyond a reasonable doubt that for the time period specified in the indictment, the defendant caused her child not to attend a public school or a nonpublic one that had been approved by the State Board of Education,
The only evidence with any probative force relating to Learning Foundations’ status came from State’s witness Dr. Heyward Bellamy, Superintendent of New Hanover County Schools. He attempted to show that Learning Foundations had not been approved by the State Board of Education; however, he obviously had no real basis for his testimony. The witness took no part in the approval of nonpublic schools; under G.S. 115-166, the State Board of Education has the sole authority to do this. He stated that he had never checked to see if Learning Foundations was on the official list of approved schools, and he had not talked with anyone at that institution about its status. Although Dr. Bellamy recited certain requirements that must be met before a school is approved, he could not know whether Learning Foundations complied with these standards at the time in question because he had not visited that institution for ten or twelve years. In essence, the witness’ whole testimony was based on the fact that “[s]o far as I know they [Learning Foundations] don’t claim to be a school and have not filed the request with the State [Board of Education].” (Emphasis added.)
“When a motion is made for a judgment of nonsuit or for a directed verdict of not guilty, the trial judge must determine whether there is substantial evidence of every essential element of the offense.” State v. Davis, 246 N.C. 73, 76, 97 S.E. 2d 444, 446
For the foregoing reason, we reverse the decision of the Court of Appeals and remand the case to that court with instructions to further remand it to the Superior Court of New Hanover County for entry of judgment dismissing the charge as of nonsuit.
Reversed and remanded.
. Apparently the State did not rely on G.S. 115-170 which states in pertinent part:
"The reports of unlawful absence required to be made by teachers and principals to the attendance counselor shall, in his hands, in case of any prosecution, constitute prima facie evidence of the violation of this Article and the burden of proof shall be upon the defendant to show the lawful attendance of the child or children upon an authorized school."
Although neither party to this lawsuit raised an issue concerning this provision, we note that it appears to violate the mandates laid down by the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975).
Concurrence Opinion
concurring.
If, as the evidence tends to show, defendant’s child had had fifteen different substitute teachers during the school year, defendant was justifiably concerned that her daughter’s progress in school was minimal at best. That defendant acted in good faith is shown by the fact that she “felt compelled to remove the child from public school to insure that the child was in a learning situation and that her emotional state improved,” and then paid $90.00 per week for tutors to instruct her daughter in all her school subjects, using the same books that had been used in public school. All these facts indicate that defendant did not wilfully violate the general compulsory school attendance law. It is my view that there must be a wilful violation of the compulsory attendance law before a parent or guardian may be convicted under G.S. 115-166.
I fully concur in the decision dismissing this indictment.