State v. . Jones

160 S.E. 468, 201 N.C. 424, 1931 N.C. LEXIS 265

• Court: Supreme Court of North Carolina
• Decided: October 7, 1931
• Status: Published

Opinion

Adams, J.

On 14 November, 1929, tbe defendant was indicted in tbe County Court of Greene County for tbe abandonment of bis wife and children. S. v. Bell, 184 N. C., 701. He was arrested on 18 December, 1929, and was tried and convicted, and on 24 December, 1929, be paid into court for tbe use of bis wife and children tbe sum of two hundred dollars, to be disbursed by tbe clerk in monthly installments of thirty dollars. Judgment was suspended and be was discharged 14 October, 1930. Tbe indictment on which be was tried in tbe present case was returned by tbe grand jury at tbe December Term, 1930, of tbe Superior Court.

Tbe principal exception involves a construction of tbat part of tbe statute which provides “tbat tbe abandonment of children by tbe father shall constitute a continuing offense and shall not be barred by any statute of limitations until tbe youngest living child shall arrive at tbe age of eighteen years” — tbe defendant contending tbat this clause was designed merely to prevent tbe statute from barring an indictment after two years from tbe first act of desertion.

We do not concur in this interpretation. A recognized principle of tbe common law, as well as of natural and moral law, imposes upon a father tbe duty of providing for tbe maintenance of bis minor children, tbe duty to support and tbe right to custody and service being reciprocal. This obligation continues until tbe children in legal contemplation axe reasonably able to provide for themselves and is not abrogated by tbe father’s abandonment of bis family. Tbe object of tbe statute is to enforce tbe obligation, not by subjecting tbe father to a civil action at tbe instance of tbe children, but by tbe infliction of punishment for bis dereliction. It would be á plain evasion of tbe legislative intent to bold tbat by suffering tbe penal consequences of a single violation of tbe statute tbe defendant could consign bis destitute children to tbe embrace of charity and thus absolve himself from liability to further prosecution.

Wharton defines a continuing offense as a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy. Crim. Pleading, 474. It is an offense which continues day by day. S. v. Hannon, 168 N. C., 215; S. v. Beam, 181 N. C., 597. The statute in express terms constitutes the abandonment of children by the father a continuing offense. The prosecution of an offense of this nature 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. 16 C. J., 268, sec. 447. This general principle is fortified by the distinct provision that the statute of limitations shall not bar prosecution until the youngest living child shall arrive at the age of eighteen years.

We have treated the exception upon its merits without reference to the rule that the pleas of former jeopardy and not guilty are matters of evidence and not available to the defendant upon a preliminary motion to dismiss the action. S. v. Gibson, 170 N. C., 697.

The objection that the defendant was in charge of the County Court when the crime for which he is now prosecuted is alleged to have been committed is met by the instruction that the jury should consider only such evidence as tends to show that the defendant violated the statute after the final disposition of the former case. Especially in view of this instruction the failure to specify a particular day in the indictment was not fatal to the prosecution. C. S., 4623, 4625. The remaining exceptions require no discussion.

No error.