State v. Thompson

Denny, J.

When the appeal was called for hearing in this Court, counsel for defendant moved that the judgment entered below be arrested, for that the warrant was issued on 3 January, 1950, prior to the birth of the illegitimate child on 24 May, 1950, and the amendment permitted in the court below resulted in the trial and conviction of the defendant upon an offense entirely different from that charged (if an offense was charged) in the original warrant.

It is well settled by this Court that the power of the Superior Court to allow amendments to warrants is very comprehensive.

S. v. Stone, 231 N.C. 324 , 56 S.E. 2d 675 ;

S. v. Carpenter, 231 N.C. 229 , 56 S.E. 2d 713 ;

S. v. Bowser, 230 N.C. 330 , 53 S.E. 2d 282 ;

S. v. Wilson, 227 N.C. 43 , 40 S.E. 2d 449 ;

S. v. Brown, 225 N.C. 22 , 33 S.E. 2d 121 ;

S. v. Holt, 195 N.C. 240 , 135 S.E. 324 ;

S. v. Mills, 181 N.C. 530 , 106 S.E. 677 . A warrant, however, cannot be amended so as to charge a different offense.

S. v. Clegg, 214 N.C. 675 , 200 S.E. 371 ;

S. v. Goff, 205 N.C. 545 , 172 S.E. 407 . But ordinarily, under our statute, G.S. 7-149, Rule 12, the *347 trial judge may allow, in bis discretion, an amendment to a warrant both as to form and substance before or after verdict, provided tbe amended warrant does not change tbe nature of tbe offense intended to be charged in tbe original warrant.

S. v. Mills, supra; S. v. Poythress, 174 N.C. 809 , 93 S.E. 919 ;

S. v. Telfair, 130 N.C. 645 , 40 S.E. 976 .

Notwithstanding these broad powers with respect to amendments, a warrant as well as tbe amendments thereto must relate to tbe charge and tbe facts supporting it as they existed at tbe time it was formally laid in tbe court.

S. v. Summerlin, 224 N.C. 178 , 29 S.E. 2d 462 .

Therefore, a conviction upon an amended warrant, unsupported by tbe facts as they existed at tbe time tbe warrant was issued, will not be upheld. Neither will a conviction for the willful failure to support an illegitimate child be upheld on such warrant, where tbe State, in order to sustain tbe conviction, must rely altogether on evidence of willful failure to support tbe child subsequent to tbe time tbe charge was laid in court.

S. v. Summerlin, supra.

Tbe mere begetting of an illegitimate child is not denominated a crime.

S. v. Stiles, 228 N.C. 137 , 44 S.E. 2d 728 ;

S. v. Dill, 224 N.C. 57 , 29 S.E. 2d 145 . Likewise, tbe failure of a father to pay tbe expenses of tbe mother incident to tbe birth of bis illegitimate child, is not a criminal offense. But upon conviction tbe court may require tbe payment of such expenses. And tbe issue or question of paternity is incidental to tbe prosecution for tbe crime of nonsupport.

S. v. Bowser, supra; S. v. Stiles, supra; S. v. Summerlin, supra.

In order to convict a defendant for tbe nonsupport of an illegitimate child, tbe burden is on tbe State to show beyond a reasonable doubt, that be is tbe father of tbe child and that be bad refused or neglected to support and maintain it, and that such refusal or neglect was willful, that is, intentionally done, “without just cause or justification,” after notice and request for support.

S. v. Hayden, 224 N.C. 779 , 32 S.E. 2d 333 ;

S. v. Ellison, 230 N.C. 59 , 52 S.E. 2d 9 ;

S. v. Stiles, supra.

Tbe motion in arrest of judgment will be allowed for tbe reason that a man cannot be held criminally liable for tbe willful failure to support an unborn illegitimate child. Moreover, a warrant may not be amended so as to charge the deféndant with an offense which was committed, if committed at all, after tbe warrant was issued.

Tbe defendant’s objection to tbe allowance of tbe amendment to tbe warrant should have been sustained. Consequently, it is unnecessary to discuss tbe assignments of error appearing in tbe case on appeal.

Judgment arrested.