#### STATE v. CREED STILES.

(Filed 5 November, 1947.)

*JL.*Bastards § 1—

In a prosecution under G. S., 49-2, the burden is on the State to show that defendant is the father of the illegitimate child and that defendant has intentionally neglected or refused to support such child.

2. Bastards § 6—

Testimony of prosecutrix that defendant is the father of her illegitimate child, together with evidence tending to show that defendant was apprised of her condition and advised of a request to pi’ovide for the child, and that defendant thereupon denied paternity and stated he would pay nothing, *is held*sufficient to overrule defendant’s motion to nonsuit in a prosecution under G. S., 49-2.

3. Bastards § *6%*—

In a prosecution under G. S., 49-2, it is reversible error for the court to instruct the jury that defendant is charged with bastardy or being the father of an illegitimate child.

4. Bastards §§ 1, 6—

In a prosecution under G. S., 49-2, an instruction to the effect that the willful failure to provide medical expenses for the mother and to pay expenses incident to the birth of the child violates the statute, is error, since willful failure to provide payment for such items is not a criminal offense although the court may require provision therefor upon conviction.

*1385. Bastards § 1—

The offense defined by G-. S., 49-2, is not bastardy, but the willful neglect or refusal of a parent to support Ms or her illegitimate child, the mere beg'etting of the child not being denominated a crime.

Appeal by defendant from *All&y, J.,*at August Term, 1947, of Chekokee.

Criminal prosecution upon an indictment charging that defendant “did unlawfully and willfully fail, neglect, and refuse to support and adequately maintain bis illegitimate child heretofore begotten upon the body of” a certain named woman, etc.

The evidence offered by the State in the trial court, in the light most favorable to the State, tends to show: That defendant is the father of the son of prosecutrix born 14 July, 1942; that when prosecutrix became pregnant she told her father and mother that defendant was the father of her child; that she requested her father “to get in touch with” defendant “and make some arrangements for him to help” her “and the child”; that her father went over and told Mr. Payne, with whom defendant “was staying,” “what he was into and it would make it a little lighter on him if he would come and do something about it and keep it out of court,” and asked Mr. Payne “to see defendant about it,” and Mr. Payne did see defendant and told him about it; that defendant said the child was not his, and he would not pay anything; that defendant was not requested to pay any definite amount; that prosecutrix has never talked with defendant since the baby was born, except one time. She says: “He was going up the road and I hollered and asked if he was going to support the child and I asked him what he was going to do and he did not even look 'toward the house when I tried to talk to him; he just walked away up the road, he and his father, and that is the only time I ever spoke to him”; that father of prosecuting witness took out a warrant for defendant a day or two after she told him; that when defendant knew he was going to be arrested, he left and went to Asheville; that defendant “has never done anything for the child, and has not paid any part of” prosecutrix’ “hospital or doctor bill”; that defendant “has never contributed anything to the support of the child.”

The State offered the child in evidence as an Exhibit.

Defendant, reserving exception to the denial of his motion for judgment as of nonsuit at close of State’s evidence, offered himself as a witness, and testified in substance: That he had never had any sexual relations with the prosecutrix; that she had never said anything to him about his being the father of her baby; that if she ever hollered to him as he was passing the house in the road and said she wanted him to do something for the baby, he “never heard it”; that Mr. Payne told him that prosecutrix was pregnant and was going to swear the child to him *139and be “could settle it now,” or words to tbat effect; tbat be told Mr. Payne tbat “it was a damned lie and a black one,” tbat be bad “never bad any sexual intercourse witb tbis girl” and “wouldn’t give bim a damned penny”; tbat tbis was tbe only time anybody ever said anything to bim about tbe prosecutrix saying tbat be was tbe father of her child; tbat “Mr. Payne didn’t mention any amount,” — just said be could settle it; tbat be has not paid anything for tbe child’s support; tbat be knew prosecutrix “was laying tbe baby” on bim from tbe time Mr. Payne told bim; and tbat be has been called out in court, and bad been arrested on capias, and bad “made two or three bonds in tbis case.”

Defendant renewed motion for judgment as of nonsuit at close of all tbe evidence. Denied. Exception.

Yerdict: Guilty.

Judgment: Imprisonment, and assigned to do labor under the supervision of tbe State Highway and Public Works Commission, — sentence not to go into effect except upon motion of tbe Solicitor within given time “upon satisfactory proof tbat defendant has failed to pay into tbe office of tbe Clerk of tbe Superior Court” certain sums of money at certain times for certain enumerated purposes, including reimbursement for hospital and medical bills at tbe time of tbe birth of tbe child.

Defendant appeals therefrom to Supreme Court and assigns error.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.*

*F. 0. Christopher and Edwards & Leatherwood for defendant, appellant.*

WiNBOBNE, J.

Tbe questions of law involved on tbis appeal, as stated in brief for defendant, are (1) whether there is sufficient evidence to be submitted to tbe jury, and (2) whether there is error in tbe court’s charge to tbe jury.

As to tbe first question, we are of opinion and bold tbat tbe evidence is sufficient to take tbe case to the jury on tbe charge witb which defendant stands indicted. Tbe indictment is under tbe statute referred to as “An Act Concerning tbe Support of Children of Parents Not Married to Each Other,” G. S., 49-1, which provides tbat “Any parent who willfully neglects or who refuses to support and maintain bis or her illegitimate child shall be guilty of a misdemeanqr and subject to such penalties as are hereinafter provided,” and tbat “a child within tbe meaning of tbis article shall be any person less than fourteen years of age and any person whom either parent might be required under tbe laws of North Carolina to support and maintain as if such child were tbe legitimate child of such parent.” G. S., 49-2.

*140Under tbis statute, tbis Court bas beld that in order to convict defendant, tbe burden is on tbe State to sbo.w not only that be is tbe father of tbe child, and that be bas refused or neglected to support and maintain it, but further that bis refusal or neglect is willful, that is, intentionally done, “without just cause, excuse or justification,” after notice and request for support. *S. v. Hayden,*224 N. C., 779, 32 S. E. (2d), 333, and cases cited.

Applying tbe provisions of tbe statute, as interpreted by tbis Court, tbe evidence offered on tbe trial below would seem to be sufficient for tbe consideration of tbe jury on tbe charge preferred against defendant.

However, as to tbe second question, we are constrained to bold that there is prejudicial error in portions of tbe instructions given by tbe presiding judge to tbe jury, — tbe charge of tbe court.

Among exceptions taken to tbe charge are these portions : (1) “Gentlemen of tbe jury, tbe defendant Creed Stiles is indicted under a bill of indictment charging him with bastardy, of being tbe father of tbe illegitimate child of . . ., and tbe willful failure to provide support to care for bis child, either before or after it was born.” . . . (2) “Now, we have a statute which makes it a crime for a man to have intercourse with a woman and become tbe father of an illegitimate child, but tbe Court bas said that that in itself does not constitute a crime, but *the*statute on which tbe State is relying, there must be shown a willful failure to provide support and pay for the expenses necessarily incurred for tbe medical attention and hospital attention when tbe child was born. Now, the word 'willful,’ when used in a statute creating an offense, means tbe act is done purposely and deliberately in violation of the law; it means an act done without any lawful justification, reason or excuse, and tbe State contends here that the defendant knew he was the father of the child, and that be admits not supporting tbe child' and admits that he has made no contribution to pay tbe medical expenses in connection with its birth, and bas not paid anything in support of the child. That part of the issue is admitted. Tbe primary question is whether the defendant is the father of tbe child, and whether tbe defendant bad intercourse with tbe prosecuting witness and as a result of that tbe child was born, so I will submit two issues.” ... (3) “And I charge you that if you find from tbe evidence, beyond a reasonable doubt, that on the occasion in question, tbe defendant had intercourse with the prosecuting witness, and that as a result of that intercourse she gave birth to tbis little child introduced in evidence, and if you further find from tbe evidence beyond a reasonable doubt that tbe defendant willfully failed to provide medical attention and failed to provide any kind of support for this child, either before or after its birth, that would constitute a violation of that statute, and if you so find from tbe evidence, beyond a reasonable doubt, it would *141be your duty to render a verdict of guilty against the defendant as charged in the bill of indictment.”

The errors, in the main, permeating these instructions are these: (a) The charge against defendant is not bastardy, or of being the father of an illegitimate child. The only prosecution contemplated under the statute is that grounded on the willful neglect or refusal of any parent to support his or her illegitimate child, — the mere begetting of the child not being denominated a crime. *S. v. Dill,*224 N. C., 57, 29 S. E. (2d), 145. See also *S. v. Tyson,*208 N. C., 231, 180 S. E., 85. The question of paternity is incidental to the prosecution for the crime of nonsupport. *S. v. Summerlin,*224 N. C., 178, 29 S. E. (2d), 462.

(b) The failure to provide for the mother and to pay expenses incident to the birth of the child are not criminal offenses. These are matters the court may provide for and require upon conviction. *S. v. Summerlin, supra.*

As there must be a retrial for errors indicated, other errors assigned may not recur, and hence need not now be considered.

New trial.