State v. . Roberts

150 S.E. 199, 197 N.C. 662, 1929 N.C. LEXIS 327

Opinion

Brogden, J.

The trial judge charged the jury as follows: “If you find from all the evidence beyond a reasonable doubt that — under these circumstances I have given you — that he has not provided adequate support during that time, taking in consideration his circumstances in life and his means, you will return a verdict of guilty; if you are not so satisfied, or if you have a reasonable doubt about it, you will return a verdict of not guilty.”

The defendant excepted to the charge as given upon the ground that it omitted the essential element of wilfulness. The exception is sustained. S. v. Yelverton, 196 N. C., 64, 144 S. E., 534.

The State relies upon the presumption of wilfulness arising from the application of C. S., 4448. However, C. S., 4448, was construed in S. v. Falkner, 182 N. C., 793, 108 S. E., 756. Tbe opinion declares: “In this connection it may be well to observe that tbe next section, C. S., 4448, dealing witb wbat shall be deemed presumptive evidence of a wilful abandonment, requires tbe showing of something more than a mere separation and failure to provide adequate support.”

New trial.