{ "id": 8608389, "name": "STATE v. GEORGE VANCE SMITH", "name_abbreviation": "State v. Smith", "decision_date": "1954-12-15", "docket_number": "", "first_page": "301", "last_page": "302", "citations": [ { "type": "official", "cite": "241 N.C. 301" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "43 S.E. 819", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "132 N.C. 1020", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662532 ], "opinion_index": 0, "case_paths": [ "/nc/132/1020-01" ] } ], "analysis": { "cardinality": 292, "char_count": 4306, "ocr_confidence": 0.464, "pagerank": { "raw": 1.8523690792090728e-07, "percentile": 0.7237035827185292 }, "sha256": "63fea4c44941e4671aa529c6f3e3d35b69e7cedc9c86920ef5ae179e04657d93", "simhash": "1:b04f42de40e846a9", "word_count": 711 }, "last_updated": "2023-07-14T21:30:40.140494+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. GEORGE VANCE SMITH." ], "opinions": [ { "text": "Winborne, J.\nAmong the many assignments of error brought up by defendant for consideration, the one, Number 24 based upon exception Number 29, to denial of his motion for arrest of judgment is well taken. The motion should have been granted.\nThe General Statute 14-322 in pertinent part reads: \u201cIf any father \u2022. . . shall willfully abandon his . . . child or children . . . without providing adequate support for such child or children, he . . . shall be guilty of a misdemeanor . . .\u201d\nThus, to constitute a violation of this criminal statute the father must have willfully abandoned his child or children, without providing adequate support for such child or children.\nTesting the offense charged against defendant in instant case by the provisions of the statute, the essential element of \u201cwillful abandonment\u201d is lacking. It is settled that a charge in a warrant or bill of indictment must be complete in itself, and contain all the material allegations which constitute the offense charged. S. v. May, 132 N.C. 1020, 43 S.E. 819. Hence in the absence of such averment the warrant is defective, and will not support the judgment. Therefore, the motion in arrest of judgment should have been allowed.\nHowever, it is provided in G.S. 14-322 that the abandonment of children by the father shall constitute a continuing offense and shall not be barred by any statute of limitation until the youngest living child shall arrive at the age of eighteen years.\nDefendant is, therefore, amenable to further prosecution if the State elects so to do.\nFor reasons stated the judgment is arrested, \u2014 and defendant is released therefrom.\nJudgment arrested.", "type": "majority", "author": "Winborne, J." } ], "attorneys": [ "Attorney-General McMullan, Assistant Attorney-General Moody, and Harvey W. Marcus, Member of Staff, for the State.", "W. P. Burkhimer for defendant, appellant." ], "corrections": "", "head_matter": "STATE v. GEORGE VANCE SMITH.\n(Filed 15 December, 1954.)\n1. Indictment and Warrant \u00a7 9\u2014\nAn indictment or warrant must be complete in itself and must contain all tbe material allegations which constitute the offense charged.\n2. Parent and Child \u00a7 12: Criminal Paw \u00a7 56\u2014\nIn a prosecution under G.S. 14-322, a warrant charging that defendant willfully failed and refused to provide adequate support for his named lawful children, is fatally defective in failing to aver that defendant had willfully abandoned them, and motion in arrest of judgment should have been allowed.\n3. Parent and Child \u00a7 9\u2014\nAbandonment of children by their father is a continuing offense, and therefore, termination of a prosecution in defendant\u2019s favor will not preclude a subsequent prosecution.\nAppeal by defendant from Burgwyn, S. J., at 1 June, 1954, Term of New HaNover.\nCriminal prosecution begun in New Hanover County Recorder\u2019s Court upon warrant on affidavit of Geneva Durden charging \u201cthat on the 3rd day of May, 1954, \u2018and for 4 yrs. prior thereto\u2019 . . . and in the county of New Hanover George V. Smith did unlawfully and wilfully fail, refuse and neglect to provide adequate support for his lawful children (naming them) and on the body of the affiant begotten, in violation of the G. S. of N. C. \u201814-322,\u2019 against the form of the statute in such cases made and provided,\u201d etc., tried in Superior Court on appeal thereto from judgment of Recorder\u2019s Court.\nVerdict in Superior Court: Guilty as charged in the warrant.\nHpon coming in of verdict, among other things, defendant moves in arrest of judgment. The motion was denied, and defendant excepted.\nJudgment: Imprisonment for a term of six months in common jail of New Hanover County and assigned to work the public roads, etc., the jail sentence being suspended upon condition that he pay the sum of $20.00 per week in the office of the Clerk of Court of New Hanover County for the support and maintenance of his four minor children, naming them, and the cost of this action.\nIt is also provided in the judgment that if, in proceeding therefor then pending, the custody of the children be awarded to him by final judgment in said cause, then and in that event this judgment shall become inoperative and of no effect; otherwise it is to remain in full force and effect, and this cause is retained for future orders.\nTo the signing of judgment defendant objected, excepted, and, in open court, gave notice of appeal and appeals to the Supreme Court, and assigns error.\nAttorney-General McMullan, Assistant Attorney-General Moody, and Harvey W. Marcus, Member of Staff, for the State.\nW. P. Burkhimer for defendant, appellant." }, "file_name": "0301-01", "first_page_order": 339, "last_page_order": 340 }