¶1 The statute, G.S. 49-2, declares that “any parent who willfully neglects or who refuses to support and maintain his or her illegitimate child shall be guilty of a misdemeanor . . .”
¶2 The only prosecution contemplated under this statute is grounded on the willful neglect or refusal of a parent to support his or her illegitimate child, — the mere begetting of the child not being denominated a crime. S. v. Clarke, 220 N.C. 392, 17 S.E. 2d 468; S. v. Dill, 224 N.C. 57, 29 S.E. 2d 145; S. v. Stiles, 228 N.C. 137, 44 S.E. 2d 728; S. v. Bowser, 230 N.C. 330, 53 S.E. 2d 282; S. v. Thompson, 233 N.C. 345, 64 S.E. 2d 157; S. v. Robinson, 236 N.C. 408, 72 S.E. 2d 857; S. v. Chambers, 238 N.C. 373, 78 S.E. 2d 209.
¶3 Likewise the failure of a father to pay the expenses of the mother incident to the birth of the illegitimate child is not a criminal offense. S. v. Thompson, supra.
¶4 In the Clarke case, supra, opinion by Devin, J., later C. J., this Court stated in respect to the offense defined in G.S. 49-2: “Willfulness is one of the essential elements of the offense. This must be charged in the warrant . . . Its omission is not cured by C.S. 4623 (now G.S. 15-153),” citing cases.
¶5 In the light of the statute, as so interpreted by this Court, it appears upon the face of the record proper that the warrant fails to allege the essential element of willfulness. This is a fatal defect in the warrant. Hence motion in arrest of judgment should be allowed. S. v. Clarke, supra. The Attorney-General so concedes.
¶6 Nevertheless, this statute G.S. 49-2, as interpreted by this Court, creates a continuing offense. S. v. Chambers, supra, citing S. v. Johnson, 212 N.C. 566, 194 S.E. 319; S. v. Bradshaw, 214 N.C. 5, 197 S.E. 564; S. v. Davis, 223 N.C. 54, 25 S.E. 2d 164; S. v. Robinson, supra.
¶7 Hence the decision here will not preclude further prosecution in keeping with the existing factual situation. £. v. Perry, 241 N.C. 119, 84 S.E. 2d 329.
¶8 For reason stated
¶9 Judgment arrested.