#### STATE v. BOBBY WILSON.

(Filed 28 November, 1951.)

1. Criminal Law § 17d: Indictment § 13—

Defendant interposed a written plea alleging that tbe indictment charged tbe same offense as that charged in a prior indictment upon which defendant had been acquitted. *Held:*The sustaining of the plea on the theory alleged is sustaining a plea of former acquittal, and provision in the order calling the plea a motion to quash will be disregarded, since the law regards the substance and not the form.

2. Criminal Law § 68a—

The State has no right of appeal from an order sustaining a plea of former acquittal. G-.S. 15-179.

Barnhill, J., concurring.

Appeal by State from *Sinlc, J.,*at tbe June Term, 1951, of tbe Superior Court of Gaston County.

Plea of *autrefois acquit*in criminal prosecution for willfully failing or refusing to provide adequate support for illegitimate child.

Tbe facts are these:

1. Tbe defendant, Bobby Wilson, was placed on trial before Judge George B. Patton and a jury at the March Term, 1951, of tbe Superior Court of Gaston County upon a first indictment charging that “on tbe 5th day of February, 1951, . . . (be) did unlawfully and willfully fail and refuse to provide adequate support for bis illegitimate child born to Elzonie Forney.” Judge Patton dismissed tbe prosecution on tbe first indictment on a compulsory nonsuit under G.S. 15-173. He gave this reason for bis ruling: “There is sufficient evidence to be submitted to tbe jury on tbe question of the paternity of tbe child, but tbe evidence is insufficient to be submitted to tbe jury on tbe question of willful failure or refusal of tbe defendant to support tbe child.”

2. Tbe grand jury subsequently returned a second indictment against tbe defendant charging that on an undesignated “day of March, 1949, . . . (be) did unlawfully and willfully fail and refuse to provide adequate support for bis illegitimate child born to Elzonie Forney.”

3. When tbe solicitor undertook to put tbe defendant on trial on tbe second indictment at tbe June Term, 1951, of tbe Superior Court of Gaston County, tbe defendant interposed a written plea, alleging, in substance, that both indictments charged tbe same offense, and pleading bis former acquittal in tbe first prosecution as a bar to tbe second prosecution. Judge H. Hoyle Sink, who presided, thereupon inspected tbe two indictments and sustained tbe defendant’s plea in an order, which called such plea a motion to quash.

*5534.Tbe State excepted to tbe order and appealed.

*Attorney-General McMullan, Assistant Attorney-General Bruton, and Charles G. Powell, Jr., Member of Staff, for the State, appellant.*

*Wade H. Sanders for defendant, appellee.*

Eevin, J.

Since tbe law looks at substance ratber than form, tbe misnaming of tbe defendant’s plea cannot blot out tbe reality that Judge Sink sustained a plea of former acquittal. He evidently concluded tbe plea to be good on tbe theory that an inspection of tbe two indictments ■disclosed that tbe facts alleged in tbe second indictment, if given in ■evidence, would have sustained a conviction under tbe first. *S. v. Hicks,*233 N.C. 511, 64 S.E. 2d 871.

Tbe validity of such conclusion cannot be reviewed by us, for tbe very simple reason that tbe State cannot appeal from an order sustaining a plea of former acquittal. *S. v. Lane,*78 N.C. 547.

Tbe right of tbe State to appeal to tbe Supreme Court from adverse rulings of tbe Superior Court or to tbe Superior Court from adverse rulings of an inferior court is governed by tbe statutory provision that '“an appeal . . . may be taken by tbe State in tbe following cases and no other”:

1. Upon a special verdict.

2. Upon a demurrer.

3. Upon a motion to quash.

4. Upon arrest of judgment.

5. Upon motion for a new trial on tbe ground of newly discovered evidence, but only on questions of law.

6. Upon declaring a statute unconstitutional. G-.S. 15-179; 1945 Session Laws, Cb. 701.

Appeal dismissed.

Babnhill, J.,

concurring: That tbe appeal by tbe State in this cause is without authority in law would seem too clear to require discussion. Even so, tbe judgment entered in tbe court below and tbe disposition of tbe appeal here may create some doubt in tbe minds of tbe solicitors of 'the State as to their right to prosecute for a willful failure by a defendant to support bis alleged illegitimate child after be has been once ■acquitted. As tbe appeal is dismissed, discussion of, or comment upon, this question has no proper place in tbe majority opinion.

Concededly, what is here said is not germane to tbe question of tbe right of tbe State to appeal, which is tbe sole ground upon which tbe .■appeal is dismissed. Yet some of us are of tbe opinion there should be *554some clarifying comment on tbe question of tbe effect of tbe judgment entered in tbe court below. For tbis reason, I file tbis concurring opinion.

Tbe first bill of indictment charges a violation of tbe statute, G.S. 49-2, on or about 5 February 1951, and tbe second, on or about March 1949. So then, acquittal on tbe first bill unquestionably constitutes a bar to prosecution under tbe latter. Tbe defendant having been acquitted on bis trial under tbe first bill, be could not thereafter be prosecuted under a warrant or bill charging a willful failure to support prior to tbe date named therein. *S. v. Johnson,*212 N.C. 566.

But tbe crime created by G.S. ,49-2 is a continuing offense. Therefore, tbe prior acquittal may not be pleaded in bar of a prosecution under a bill which charges a violation of tbe statute at a date subsequent to 5 February 1951, tbe date named in tbe first bill. *S. v. Johnson, supra.*Tbe only prosecution contemplated under tbe statute is grounded on tbe willful neglect or refusal of a parent to support bis illegitimate child. Tbe mere begetting tbe child is not denominated a crime. Tbe question of paternity is incidental to tbe prosecution for tbe crime of nonsupport— a preliminary requisite to conviction. *S. v. Stiles,*228 N.C. 137; *S. v. Summerlin,*224 N.C. 178; *S. v. Bowser,*230 N.C. 330. Hence a verdict of not guilty on tbe charge of willful nonsupport does no more than find tbe defendant not guilty of tbe crime laid in tbe bill. Tbe verdict could not be construed to be a verdict of not guilty of begetting tbe child.

It follows that tbe solicitor is free to prosecute for a violation of tbe statute subsequent to 5 February 1951, unaffected by tbe judgment entered in tbe court below, if be is so advised.