State v. . Johnson

194 S.E. 319, 212 N.C. 566, 1937 N.C. LEXIS 372

• Court: Supreme Court of North Carolina
• Decided: December 15, 1937
• Status: Published

Opinion

BaeNHill, J.

Does chapter 228 of the Public Laws of 1933 create a continuing offense? This is the one question involved on this appeal. If the act does not create a continuing offense, the defendant’s plea of former jeopardy must be sustained. If it does create a continuing offense, his conviction upon a charge of willfully failing and neglecting to support his illegitimate child prior to 2 April, 1937, is a bar only to any further proceedings on account of his conduct prior to the date of his conviction. The defendant, through his counsel, consented that the second issue submitted to the jury should be answered in the afiirmative, and he thereby admitted that since completion of his sentence under his former conviction he has willfully failed and neglected to support his illegitimate child. If the act creates a continuing offense, his conduct after his discharge in willfully failing and neglecting to support his illegitimate child creates a separate and distinct offense and his plea of former jeopardy will not avail him.

The prosecution of a defendant charged with the violation of a continuing offense is a bar to a subsequent prosecution for the same offense charged to have been committed at any time before the institution of the first prosecution. But it is not a bar to a subsequent prosecution for continuing the offense thereafter, as this is a new violation of the law. Each day during which it is continued constitutes a separate offense and will support a separate prosecution, provided the warrant or indictment alleges separate and distinct times during which the offense was committed. 16 C. J., sec. 447. Com. v. Peretz, 212 Mass., 253, 98 N. E., 1054, Ann. Cas., 1913-D, 484; Com. v. Robinson, 126 Mass., 259, 30 Am. R., 674. Where the periods covered by the two indictments are entirely separate and distinct a prosecution under one will not bar a prosecution under the other. 16 C. J., sec. 447; U. S. v. Swift, 186 Fed., 1002; Com. v. Anderson, 220 Mass., 142, 107 N. E., 523.

A continuing offense is an unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force however long a time it may occupy. When such an act, or series of acts, runs through several jurisdictions, the offense is committed and cognizable in each. See Armour Packing Co. v. U. S., 82 C. C. A. (U. S.), 135; 14 L. R. A. (N. S.), 400, 153 Fed. Rep., 1. A continuing offense is a transaction or a series of acts set on foot by an unintermittent force no matter how long a time it may occupy. Black’s Law Dictionary. People v. Sullivan, 33 Pacific, 701, 9 Utah, 195; Estepp v. State, 11 Okla. Cr., 103, 143 Pacific, 64;.State v. Brown, 133 Pacific, 1143. A continuing offense is an offense which continues day by day. S. v. Jones, 201 N. C., 424, 160 S. E., 468. An offense is a crime or misdemeanor; a breach of the criminal law. “Continuing” means enduring, not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive, similar obligations or occurrences. A continuing offense, therefore, is a breach of the criminal law not terminated by a single act or fact, but which subsists for a definite period and is intended to cover or apply to successive similar obligations or occurrences.

Can it be said that an indictment and conviction for keeping a gaming-house, or maintaining a disorderly house, or a house of ill-fame, precludes further prosecution of the same defendant for keeping the same gaming house, or maintaining the same disorderly house, or house of ill-fame, after his discharge from imprisonment under the first conviction? It has not been so held by the courts. If a person is indicted for practicing law or medicine, or other profession requiring a license, without first having obtained such license, does he by his conviction and imprisonment thereby vest himself with a license to thereafter violate the law with impunity? Would one who is convicted of maintaining a public nuisance and who received the maximum term therefor, thereafter be protected by the plea of former jeopardy in maintaining the same nuisance at the same place and under the same circumstances after his discharge from custody? Can we say that one who is convicted on the charge of vagrancy is forever thereafter protected by such a plea? We feel that no one would undertake to answer these questions in the affirmative.

Can it be said, then, that the defendant, by reason of the fact that he has been convicted and imprisoned for his violation of the statute under consideration up to 2 April, 1937, was thereby relieved from the duty imposed upon him by the statute? After his discharge from custody, was it not still his duty to support and maintain his illegitimate child, and was not his willful failure and neglect to do so a crime separate and distinct from the one for which he was convicted? We are of the opinion that these questions must likewise be answered in the affirmative. Could it be said that if the defendant and his illegitimate child had resided in one county for the first twelve months of the life of the child and they had thereafter moved their residence to some'other county the defendant by willfully failing and neglecting to support the child during the full period had not committed an offense under this statute in each of the counties ? Could he be indicted in the first county under a warrant specifying the period of residence in the second county, or could he be indicted in the second county under a warrant specifying the period of residence in the first? It seems to us that of necessity this statute must be construed as a continuing offense, and that the defendant’s conviction for willfully failing and neglecting to support his child prior to 2 April, 1937, is no bar to a prosecution for a violation of the same statute subsequent thereto.

We do not consider that former decisions of this Court, under the provisions of C. S., 4447, are in point or controlling. An essential element of the crime created by that statute is abandonment. Without proof of abandonment a conviction cannot be had. This is certainly true up until the time the act was amended to make the offense as to the children a continuing offense. An abandonment takes place at a time certain. It cannot be continuing in its nature. The moment a husband separates himself from his wife with the intent to discontinue the marital relations and to disregard and shirk the marital obligations and responsibilities in respect to providing for support, and otherwise, abandonment is complete. The husband cannot again commit the same crime, as to the wife, without first reassuming the marital relations.

The court below properly held that defendant’s plea of former jeopardy in this cause was no bar to the present prosecution.

No error.