State v. Walton , 41 N.C. App. 281 ( 1979 )

ERWIN, Judge.

Defendant contends that the criminal summons issued is defective in that it fails to contain all the essential elements of the crime charged. We disagree.

The summons provides in pertinent part:

“The undersigned finds that there is probable CAUSE TO BELIEVE that on or about the 31 day of December, 1977, in the county named above, you did unlawfully, willfully, neglect and refuse to provide adequate support and maintain Brandon Dail Harrison, his illegitimate child born to Martha Jo Harrison on December 31, 1977. The refusal and neglect to provide adequate support and maintain the child continued after due notice and demand was made upon him on January 7, 1978 by Jean Harrison, in violation of the following law: GS 49-2.”

The summons sets forth each element essential to conviction of the crime charged: (1) that defendant is the parent of the illegitimate child in question; (2) that defendant has willfully neglected or refused to support and maintain such illegitimate child, State v. Coffey, 3 N.C. App. 133, 164 S.E. 2d 39 (1968); (3) that defendant’s willful neglect or refusal to support his illegitimate child occurred after notice of the child’s birth and demand of support subsequent to the child’s birth; and (4) that criminal support proceedings were initiated only after such notice and demand. State v. Ingle, 20 N.C. App. 50, 200 S.E. 2d 427 (1973). Under G.S. 49-2, defendant was charged with the duty to provide adequate support for his illegitimate child. The summons alleges that defendant failed to provide any support whatsoever. We hold that the summons contains each essential element of the crime charged and is valid.

Defendant’s contention that the trial judge erred in refusing to dismiss the case at the close of the State’s evidence and at the close of all the evidence is without merit.

On a motion to nonsuit, the evidence is to be considered in its most favorable light for the State, and the State is entitled to every inference of fact which may reasonably be deduced from the evidence, and contradictions and discrepancies in the State’s evidence are for the jury to resolve and do not warrant the granting of the motion of nonsuit. State v. Snyder, 3 N.C. App. 114, 164 S.E. 2d 42 (1968). When viewed in the light most favorable for the State, the evidence was sufficient to go to the jury on the premise that defendant’s neglect or refusal to provide support for his illegitimate child was willful. We find no error in the court’s denial of the motion to nonsuit.

Defendant next assigns as error the trial court’s instructions to the jury. We find no error.

Defendant would have us read into the trial court’s charge a limitation of the jury’s consideration to only one issue. This the court did not do. On the contrary, the court stated:

“There are four questions to be answered — three of these deal with the elements of the crime and the fourth being what is in effect your verdict in the case.

That is whether or not the defendant, Craig Walton is guilty of willful neglect or refusal to provide adequate support and maintenance of said illegitimate child.”

Later in its charge, the court proceeded to set forth the first three elements of the offense:

“[I] charge for you to find that the defendant is guilty of willful neglect or refusal to maintain adequate support for his illegitimate child, the State must prove to you by the evidence and beyond a reasonable doubt three things.

The first: Is the defendant, Craig Walton, the father of Brandon Dale Harrison born of the body of Martha Jo Harrison on December 31, 1977? Second, that Brandon Dale Harrison or that after Brandon Dale Harrison was born, that Martha Jo Harrison gave notice to the defendant demanding that he maintain and provide adequate support for Brandon Dale Harrison. . . .

The third thing that the State must prove to you by the evidence and beyond a reasonable doubt before you may find the defendant guilty of the crime charged is that the defendant willfully neglected or refused to support or refused to maintain and provide adequate support for Brandon Dale Harrison. Willfully means intentionally and without justification or excuse.”

The court fully instructed the jury on all the elements of the offense charged, defined and applied the law thereto, and stated the contentions of the parties. This is all that G.S. 15A-1232 requires. See State v. Middleton, 25 N.C. App. 632, 214 S.E. 2d 248 (1975), (construing G.S. 1-180, the predecessor statute of G.S. 15A-1232, repealed 1977). The charge must be read contextually, and when this is done, it is manifest that the jury understood that each element had to be proved by evidence establishing the same beyond a reasonable doubt. We find no error.

Defendant’s last assignment of error is that the trial judge committed error by ordering him to pay $200 per month as child support without any evidence as to his income, the needs of the child, or any other circumstance relating thereto. This assignment of error has merit.

Upon a conviction of willful failure to support an illegitimate child, the trial court has plenary power to suspend imposition or execution of defendant’s sentence on condition that he pay a specified sum of money into court for support of his illegitimate child. State v. Bowser, 232 N.C. 414, 61 S.E. 2d 98 (1950). However, G.S. 49-7 provides in relevant part:

“[A]fter this matter shall have been determined in the affirmative, the court shall fix by order, subject to modification or increase from time to time, a specific sum of money necessary for the support and maintenance of the particular child who is the object of the proceedings. The court in fixing this sum shall take into account the circumstances of the case, the financial ability to pay and earning capacity of the defendant, and his or her willingness to cooperate for the welfare of the child.”

The record does not indicate that the trial court in the instant case complied with the dictates of G.S. 49-7. Such compliance is essential to the validity of its support order.

Accordingly, that part of the court’s judgment ordering the payment of $200 per month as child support is vacated. The case is remanded with instructions that the trial court conduct a hearing to determine the amount the defendant should pay for the support of his child. The beginning date of payment shall be 7 July 1978, the date the judgment was entered at the defendant’s original trial.

Remanded for proper judgment.

Judges MARTIN (Robert M.) and ARNOLD concur.