#### STATE v. FUSCHEL McMAHAN.

(Filed 27 September, 1944.)

1. Criminal Law § 52b—

On motion to nonsuit a criminal case, tbe evidence will be considered in its most favorable light for the prosecution.

2. Husband and Wife § 28: Parent and Child §§ 2, 14—

The law presumes the legitimacy of a child born in lawful wedlock, and this includes one of antenuptial conception.

Appeal by defendant from Pless, J., at March Term, 1944, of YANCEY.

Criminal prosecution tried upon indictment charging abandonment and nonsupport of defendant’s wife and child.

The evidence discloses that Aileen Riddle, age 19, had been a patient in -the State Hospital at Morganton, N. 0. She had been released from that institution about a year and a half or two years, when she became pregnant. Her father had a conversation with the defendant about her condition, and the defendant agreed to marry her and to take care of her. The 'father accompanied his daughter and the defendant to Greenville, S. C., where they were married. He further testified: “I went with them and they were married and come back and he dodged her out and never did live with her and in four days her mind got bad until I had to take her back to the hospital. It was four or five days when she was taken back. He has not contributed anything to her support since their marriage. A child has been born to Mrs. Euschel McMahan since she entered the hospital, born in the hospital. The child is eight months old the 16th of this month (April, 1944). The child is at my house with its grandmother. I have supported the child since its birth. Euschel McMahan has contributed nothing to the support of the child since its birth. Euschel McMahan has known my daughter all of their lives. They went to school together. I lived in the same community. He knew when he married my daughter that she had been a patient at the State Hospital at Morganton. ... It was four or five months after the marriage that the child was born.”

Yerdict: “Guilty as charged.” Judgment: Imprisonment in the common jail of Yancey County for a period of twelve months; assigned to work under the supervision of the State Highway and Public Works Commission. Judgment suspended upon condition that defendant pay the costs, and certain stipulated sums for the benefit of the child in question.

The defendant appeals, assigning errors.

*477 Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the Stale.

Charles Hutchins for defendant.

DeNny, J.

Tbe first and second exceptions are directed to tbe refusal of bis Honor to allow tbe defendant’s motion for judgment of nonsuit, made at tbe close of tbe State’s evidence and renewed at tbe close of all tbe evidence. Tbe defendant contends tbe evidence is not sufficient to be submitted to tbe jury upon tbe question of tbe willful abandonment of bis wife and tbe failure to provide adequate support for bis wife and child. He further contends there is no evidence tending to show that be is tbe father of tbe child.

Tbe evidence is to the effect that tbe defendant married Aileen Riddle, “dodged her out and never did live with her”; that she gave birth to a child four or five months after tbe marriage, and that tbe defendant has never contributed anything to tbe support of bis wife, or child.

On a motion to nonsuit, tbe evidence will be considered in its most favorable light for tbe prosecution. S. v. Andrews, 216 N. C., 574, 6 S. E. (2d), 35; S. v. Adams, 213 N. C., 243, 195 S. E., 822.

Tbe two elements of tbe offense' — -willful abandonment and failure to support — are charged in tbe bill of indictment, and tbe State’s evidence is sufficient to support tbe verdict. S. v. Falkner, 182 N. C., 793, 108 S. E., 756. Tbe contention that there is no evidence to show that tbe defendant is tbe father of tbe child in question is without merit. Tbe law presumes tbe legitimacy of a child born in lawful wedlock, and this includes one of antenuptial conception. West v. Redmond, 171 N. C., 742, 88 S. E., 341. These exceptions cannot be sustained.

While tbe remaining exceptions are without substantial merit, tbe brief does not comply with Rule 28, Rules of Practice in tbe Supreme Court, 221 N. C., 562, and they are, therefore, deemed abandoned.

In tbe trial below, we find

No error.