Opinion
(Filed 11 October, 1944.)
Bastards § 2 —
Willfulness is an essential element of the offense of failure to support an illegitimate child, G.S., 49-2, and a verdict — "guilty of failure to support and maintain his bastard child" — is insufficient to support a judgment.
APPEAL by defendant from Rousseau, J., at March Term, 1944, of WILKES.
Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.
J. Allie Hayes and Trivette Holshouser for defendant.
Criminal prosecution upon bill of indictment charging that defendant willfully failed, refused and neglected to support and maintain his illegitimate child. G.S., 49-2.
Verdict: Guilty of failure to support and maintain his bastard child.
Judgment: Pronounced.
To the refusal of the court to set aside the verdict and to order a new trial, and to judgment pronounced, defendant excepts and appeals to the Supreme Court and assigns error.
Willfulness is an essential element of the offense with which defendant is charged and for which he was tried in Superior Court. G.S., 49-2. S. v. Moore, 220 N.C. 535, 17 S.E.2d 661; S. v. Clarke, 220 N.C. 392, 17 S.E.2d 468; S. v. Tyson, 208 N.C. 231, 180 S.E. 85, and other cases. This element is lacking in the verdict as returned. Hence, the verdict is insufficient to support a judgment. S. v. Cannon, 218 N.C. 466, 11 S.E.2d 301; S. v. Lassiter, 208 N.C. 251, 179 S.E. 891; S. v. Barbee, 197 N.C. 248, 148 S.E. 249; S. v. Parker, 152 N.C. 790, 67 S.E. 35.
If the verdict had been simply "Guilty" or "Guilty as charged," it would have been sufficient. But as was said by Stacy, C. J., speaking for the Court in the Lassiter case, supra, "When the jury undertakes to spell out its verdict without reference to the charge, as in the instant case, it is essential that the spelling be correct."
There will be a
Venire de novo.