State v. . Kerby

14 S.E. 856, 110 N.C. 558

• Court: Supreme Court of North Carolina
• Decided: February 5, 1892
• Status: Published

Opinion

Avery, J.:

The indictment follows the words of the statute {The Code, §972), which provides that where the husband, while living with his wife, shall wilfully fail to provide ade quate support for such wife, or the children which he has begotten upon her, he shall be guilty of a misdemeanor. It is unquestionably as much a distinct criminal offence to fail to make sufficient provision for the children as for the wife, and the Solicitor might charge the omission to discharge either, or both of the duties, the disregard of which the law is intended to punish.

It was not necessary to aver in the indictment that no Justice of the Peace had taken cognizance of the offence charged for twelve months after it was committed, because the fact, if true, that the bill had been sent before the jurisdiction of the higher Court attached, was matter of defence, to be shown on the trial; non constat upon the motion to quash, on the face of the indictment, but what it may be shown that the offence was committed twelve months before the indictment was found. State v. Porter, 101 N. C., 713; State v. Moore, 82 N. C., 659; State v. Taylor, 83 N. C , 601; State v. Earnest, 98 N. C., 740; State v. Cunningham, 94 N. C., 824; State v. Shelley, 98 N. C., 673.

We can conceive of no grounds for sustaining defendant’s motion, except those stated. The judgment quashing the indictment is reversed. Let this opinion be certified, to the the end that a new trial may be had in the Court below.

Error.