State v. . Yelverton

144 S.E. 534, 196 N.C. 64, 1928 N.C. LEXIS 279

• Court: Supreme Court of North Carolina
• Decided: September 26, 1928
• Status: Published

Opinion

Stacy, 0. J.,

after stating tbe case: It will be observed tbat tbe vital element of wilfulness, necessary to constitute an abandonment under tbe statute, is omitted from both instructions assigned as errors. Tbe language of tbe statute is as follows: “If any husband shall wilfully abandon bis wife without providing adequate support for such wife, and tbe children which be may have begotten upon her, be shall be guilty of a misdemeanor.” C. S., 4447.

Speaking to a similar situation and interpreting tbe statute in S. v. Johnson, 194 N. C., 378, 139 S. E., 697, it was said: “An offending husband may be convicted of abandonment and nonsupport when — and only when — two things are established: First, a wilful abandonment of tbe wife; and, second, a failure to provide ‘adequate support for such wife, and the children which he may have begotten upon her.’ S. v. Toney, 162 N. C., 635; S. v. Hopkins, 130 N. C., 647. The abandonment must be wilful, that is, without just cause, excuse or justification. S. v. Smith, 164 N. C., 475. And both ingredients of the crime must be alleged and proved. S. v. May, 132 N. C., 1021.”

• It is conceded by the learned Assistant Attorney-General, Mr. Nash, that the instruction with respect to the alleged abandonment of the children .is erroneous; S. v. Bell, 184 N. C., 701, 115 S. E., 190.

New trial.