{
  "id": 8553567,
  "name": "STATE OF NORTH CAROLINA v. VAN HENRY COFFEY",
  "name_abbreviation": "State v. Coffey",
  "decision_date": "1968-11-20",
  "docket_number": "No. 6825SC369",
  "first_page": "133",
  "last_page": "136",
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      "cite": "3 N.C. App. 133"
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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    {
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      "cite": "230 N.C. 614",
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    {
      "cite": "245 N.C. 10",
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      "opinion_index": 0
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    {
      "cite": "262 N.C. 446",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T16:33:22.618564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Beook and Beitt, JJ., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. VAN HENRY COFFEY"
    ],
    "opinions": [
      {
        "text": "PARKER, J.\nFor a defendant to be found guilty of the criminal offense created by G.S. 49-2, two facts, must be established: First, that the defendant is a parent of the illegitimate child in question, who must be a person coming within the definition of a child as set forth in that section; and second, that the defendant has willfully neglected or refused to support and maintain such illegitimate child. In addition, if the defendant is the reputed father, it must be shown that the prosecution has been instituted within one of the time periods provided in G.S. 49-4. In prosecutions under G.S. 49-2 et seq. the court is expressly commanded first to determine the paternity of the child, and \u201c(a)fter this matter has been determined in the affirmative, the court shall proceed to determine the issue as to whether or not the defendant has neglected or refused to support and maintain the child who is the subject of the proceeding.\u201d G.S. 49-7.\nIn the present case the judge of the district court found the issue of paternity against the defendant but found that no demand for support had been made upon defendant after the child\u2019s birth. In accordance with these findings the district court properly found defendant not guilty of willful failure to support his illegitimate child. Under G.S. 49-2 the mere begetting of the child is not a crime. The crime recognized by that statute is the willful neglect or refusal of a parent to support his or her illegitimate child. \u201cThe question of paternity is incidental to the prosecution for the crime of nonsupport\u2014 a preliminary requisite to conviction.\u201d State v. Ellis, 262 N.C. 446, 137 S.E. 2d 840; State v. Robinson, 245 N.C. 10, 95 S.E. 2d 126.\nG.S. 7A-288 provides that \u201c(a)ny defendant convicted in district court before the judge may appeal to the superior court for trial de novo.\u201d Here, it is true the defendant was not convicted of any crime in the district court. Nevertheless he had a right to appeal to the superior court from the adverse finding of the district court on the issue of paternity. G.S. 49-7 expressly provides \u201cthat from a finding of the issue of paternity against the defendant, the defendant shall have the same right to an appeal as though he had been \u25a0found guilty of the crime of willful failure to support a bastard child.\u201d (Emphasis added.) This proviso in G.S. 49-7 was not repealed either expressly or by implication by enactment of G.S. 7A-288. The two statutes, when properly construed together, are not inconsistent, and the decision in State v. Clement, 230 N.C. 614, 54 S.E. 2d 919, recognizing the validity of the above-quoted proviso to G.S. 49-7, is still controlling. Therefore, there can be no question but that upon defendant\u2019s appeal from the district court, the superior court acquired jurisdiction to inquire into the issue of paternity and the defendant had the right to have this issue determined by trial de novo before judge and jury.\nDefendant\u2019s appeal did not, however, bring before the superior court for trial de novo the issue of defendant\u2019s willful neglect or refusal to furnish support. That issue, insofar as the present prosecution is concerned, had already been determined in defendant\u2019s favor by the district court. From this determination the State had no right to appeal, and the defendant, by appealing the finding adverse to him on the issue of paternity, did not lose the benefit of the finding in his favor on the issue of nonsupport. It was, therefore, error for the superior court to submit the question of defendant\u2019s willful refusal to support his illegitimate child to the jury.\nThe issue of paternity has been established by the present case adversely to defendant and cannot be re-litigated by him. State v. Ellis, supra. Since the offense of nonsupport under G.S. 49-2 is a continuing one, a new warrant may be filed charging defendant with nonsupport, if such has occurred after the issuance of the warrant on which he has been tried. State v. Johnson, 212 N.C. 566, 194 S.E. 319.\nReversed.\nBeook and Beitt, JJ., concur.",
        "type": "majority",
        "author": "PARKER, J."
      }
    ],
    "attorneys": [
      "Attorney General T. W. Bruton and Staff Attorney (Mrs.) Christine Y. Denson for the State.",
      "Ted S. Douglas for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. VAN HENRY COFFEY\nNo. 6825SC369\n(Filed 20 November 1968)\n1. Bastards \u00a7 1\u2014 wilful refusal to support illegitimate child \u2014 elements of offense\nFor a defendant to be found guilty of the offense of wilfully refusing \u2022to support bis illegitimate child, it must be established that (1) the defendant is a parent of the illegitimate child in question and (2) the defendant has wilfully neglected or refused to support arid maintain such illegitimate child. G.S. 49-2 et seq.\n2. Bastards \u00a7 3\u2014 nonsupport prosecution \u2014 statutory limitations\nIn a prosecution under G.S. 49-2, if the defendant is the reputed father, it must be shown that the prosecution has been instituted within one of the time periods provided in G.S. 49-4.\n3. Bastards \u00a7 1\u2014 wilful failure to support illegitimate child \u2014 the offense\nThe mere begetting of a child is not a crime; the crime is the wilful neglect or refusal of a parent to support his or her illegitimate child. G.S. 49-2.\n4. Bastards \u00a7 9; Criminal Law \u00a7 18\u2014 appeal from adverse finding of paternity \u2014 effect of G.S. 7A-2S8\nThe proviso in G.S. 49-7, which gives a defendant in a prosecution for nonsupport of his illegitimate child the right of appeal from a finding establishing his paternity of the child notwithstanding the verdict finds him not guilty of \u00a1the offense, was not repealed either expressly or by implication by enactment of G.S. 7A-288.\n5. Bastards \u00a7 9\u2014 appeal from adverse finding of paternity \u2014 jurisdiction of Superior Court\nIn a prosecution for nonsupport of an illegitimate child, defendant\u2019s appeal from the District Court upon an adverse finding on the issue of paternity entitles him to have this issue determined by trial de novo in the Superior Court, but it is error for Superior Court to submit to the jury the issue of defendant\u2019s wilful refusal to support his illegitimate child when the issue has already been determined in defendant\u2019s favor in \u25a0this prosecution by the District Court. G.S. 49-7.\n6. Bastards \u00a7 9\u2014 wilful nonsupport prosecution \u2014 res judicata on is-\nsue of paternity \u2014 new warrant for nonsupport In a prosecution for the wilful nonsupport of an illegitimate child, the issue of paternity was decided adversely to the defendant but the issue of defendant\u2019s wilful refusal to furnish support was decided in his favor. Held: Defendant may not re-litigate the issue of paternity; since the offense of nonsupport under G.S. 49-2 is a continuing one, defendant may be charged under a new warrant with nonsupport if such has occurred after issuance of the warrant on which he has been tried.\nAppeal by defendant from Beal, S.J., May 1968 Session of Caldwell Superior Court.\nDefendant was tried in the district court on a warrant charging him with willfully refusing to support his illegitimate child, a violation of G.S. 49-2. He pleaded not guilty. After hearing, the district judge found as a fact that defendant was the father of the child in question but found that no demand for support of the child had been made on the defendant by the mother since the child\u2019s birth and accordingly found defendant not guilty. Defendant appealed to the superior court where he was tried de novo by judge and jury. The State offered evidence bearing upon defendant\u2019s paternity of the child in question and upon his willful refusal to support, and the case was submitted to the jury upon both questions. The jury answered all issues against the defendant and the court entered judgment sentencing defendant to six months in jail suspended upon condition that defendant make stated payments for support of the child. Defendant appealed.\nAttorney General T. W. Bruton and Staff Attorney (Mrs.) Christine Y. Denson for the State.\nTed S. Douglas for defendant appellant."
  },
  "file_name": "0133-01",
  "first_page_order": 153,
  "last_page_order": 156
}