State v. . Gardner

Supreme Court of North Carolina

State v. . Gardner

13 S.E.2d 529, 219 N.C. 331, 1941 N.C. LEXIS 318

CourtSupreme Court of North Carolina

DecidedMarch 19, 1941

StatusPublished

Cited by5 cases

This text of 13 S.E.2d 529 (State v. . Gardner) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Gardner, 13 S.E.2d 529, 219 N.C. 331, 1941 N.C. LEXIS 318 (N.C. 1941).

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Opinion

WiNBORNE, J.

It appearing upon the face of the bill of indictment that no crime is charged therein, the motion to quash it is well taken.

The wording and phraseology in the bill of indictment clearly indicate that it is drawn under the provisions of section 4441 of Consolidated Statutes of North Carolina, 1919, as amended by Public Laws 1925, chapter 290, pertaining to abandonment. That statute provides that “if any husband shall wilfully abandon his wife without providing adequate support for such wife, and the children which he may have begotten upon her, he shall be guilty of a misdemeanor: Provided, that the abandonment of children by the father shall constitute a continuing offense . . But this being a penal statute, it must be strictly construed. Hence, the children there referred to, are limited to those which the husband “may have begotten upon” the wife. It has no application to illegitimate children. Therefore, while undertaking to charge a crime under the statute, the descriptive words relating to the illegitimacy of the child take the charge out of the statute.

Furthermore, there is in this State no statutory crime of abandonment of an illegitimate child, and no such crime existed at common law.

As defendant was not tried in the Superior Court upon warrant issued out of general county court of Buncombe County, the question as to the sufficiency of the warrant may not be raised on this appeal.

The judgment below is

Reversed.

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WiNBORNE, J.

It appearing upon the face of the bill of indictment that no crime is charged therein, the motion to quash it is well taken.

The wording and phraseology in the bill of indictment clearly indicate that it is drawn under the provisions of section 4441 of Consolidated Statutes of North Carolina, 1919, as amended by Public Laws 1925, chapter 290, pertaining to abandonment. That statute provides that “if any husband shall wilfully abandon his wife without providing adequate support for such wife, and the children which he may have begotten upon her, he shall be guilty of a misdemeanor: Provided, that the abandonment of children by the father shall constitute a continuing offense . . But this being a penal statute, it must be strictly construed. Hence, the children there referred to, are limited to those which the husband “may have begotten upon” the wife. It has no application to illegitimate children. Therefore, while undertaking to charge a crime under the statute, the descriptive words relating to the illegitimacy of the child take the charge out of the statute.

Furthermore, there is in this State no statutory crime of abandonment of an illegitimate child, and no such crime existed at common law.

As defendant was not tried in the Superior Court upon warrant issued out of general county court of Buncombe County, the question as to the sufficiency of the warrant may not be raised on this appeal.

The judgment below is

Reversed.

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Bluebook (online)

13 S.E.2d 529, 219 N.C. 331, 1941 N.C. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gardner-nc-1941.

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