#### STATE OF NORTH CAROLINA v. RICHIE “Ricky” LEE FOWLER

No. 7027SC414

(Filed 15 July 1970)

Bastards § 1— failure to support illegitimate child — prosecution

There was no prejudicial error in the trial of defendant for neglecting and refusing to support his illegitimate child, the trial court having denied the defendant’s motion for a blood grouping test after the death of the child. G.S. 49-2, G.S. 49-7.

Britt, J., dissents.

Appeal by defendant from Falls, J., 2 March 1970 Criminal Session, Gaston Superior Court.

The defendant in this case was charged in a warrant issued on 19 September 1969 with neglecting and refusing to support his illegitimate child, Michael Wayne Hicks, born to Patricia Ann Hicks on 7 September 1969, in violation of G.S. 49-2.

When this case was called for trial, and before pleading to the charge, the defendant, through his attorney, filed a written motion for a blood grouping test as provided in G.S. 49-7. The evidence on the hearing of the motion before Judge Falls revealed that the alleged illegitimate child, Michael Wayne Hicks, died on 15 October 1969 in Duke Hospital after undergoing open heart surgery. The court denied the motion for a blood grouping test, and the defendant entered a plea of not guilty. The jury found the defendant guilty as charged, and from the entry of the judgment, the defendant appealed to the North Carolina Court of Appeals.

Robert Morgan, Attorney General, and Edward Eatman, Staff Attorney, for the State.

Richard A. Cohan for the defendant appellant.

Hedrick, J.

The defendant assigns as error the court’s action in denying his motion for a blood grouping test and the court’s denial of his motion for judgment as of nonsuit aptly made at the close of the State’s evidence and renewed at the close of all the evidence.

After an examination of the entire record in this case, and considering all the defendant’s exceptions and assignments of *65error, we conclude that the defendant had a fair trial free from prejudicial error.

No error.

Brock, J., concurs.

Britt, J., dissents.