
    STATE v. WALTER BEAM.
    (Filed 25 May, 1921.)
    1. Criminal Law — Husband and Wife — Abandonment—Statutes—Limitation of Actions.
    Where a man willfully abandons his wife, sends remittances for her support, returns and lives with her as man and wife for a while, and again abandons her, his willfully leaving her the second time without providing an adequate support for her is a fresh “abandonment and failure to support,” made a misdemeanor by C. S., 4447, and an indictment found within two years therefrom is not barred by the statute of limitations.
    2. Criminal Law — Husband and Wife — Abandonment—Actions—Venue— Courts — Jurisdiction.
    Where a man willfully abandons his wife in this State and fails to send her funds for an adequate support, when he was residing in another State, he cannot direct her choice of residence and is indictable under the laws of this State in the county of her residence. C. S., 4447.
    3. Criminal Law — Husband and Wife — Abandonment—Justification.
    A conviction of a willful abandonment by the husband of his wife is equivalent to a finding that he has left her without justification. C. S., 4447.
    4. Criminal Law — Husband and Wife — Abandonment—Support—Indictment — Evidence—Burden of Proof.
    Upon a trial under an indictment of the husband for the abandonment of his wife (C. S., 4447), both the fact of willful abandonment and that of failure to support must be alleged and proved, the abandonment; being a single act and not a continuing offense, day by day, but the duty to support being a continuing one during the marital union, to be performed by him unless relieved therefrom by legal excuse; and his willful abandonment and failure to provide constitutes the statutory offense.
    Appeal by tbe defendant from Long, J., at July Term, 1920, of BtjNgombe.
    Tbis is an indictment of tbe defendant for tbe willful abandonment of bis wife without providing adequate support for ber. O. S., 4447. They were married on 25 January, 1912, and be abandoned ber on 5 April, 1916, but tbey lived together a short time in the fall of 1916, when be again abandoned ber and went to Georgia to live, the wife remaining in Asheville, N. 0. The defendant provided bis wife with money by remittances from time to time for ber support. These contributions were made to a time within the two years next preceding the finding of this indictment. There was a verdict of guilty, and from the judgment defendant appealed.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      Mark W. Brown for defendant.
    
   "Waíicee, J.

There are only two material questions in the case:

1. Is the prosecution barred by the statute of limitations? This was presented in several ways by the defendant, who set up the bar. The facts bearing upon this contention are that defendant willfully abandoned bis wife at Asheville, where tbey lived, in April, 1916, and went to the State of Georgia, making bis home there. He promised to send ber money from time to time for ber support, and did so until tbey became reconciled in the fall of that year for a short while, a few days, and during that time lived and cohabited together as man and wife, when be again abandoned ber and returned to Georgia, but continued to make regular remittances of money to ber at Asheville for ber support and maintenance until a time within two years before this indictment was found by the grand jury, when be ceased to do so. This failure on bis part to continue in the performance of bis duty to support her was, in law, a fresh act of “abandonment and failure to support” within the meaning of the statute (C. S., 4441), and it has been so expressly held upon a state of facts identical with those we find in this record. S. v. Davis, 79 N. C., 603; S. v. Hannon, 168 N. C., 215.

2. The other position also is untenable. The fact that defendant lived in Georgia, from which State the remittances were made, has not the effect of making it a Georgia transaction, so as to bar this prosecution under, our statute or to oust the jurisdiction of our .courts. He promised to send the money to ber at Asheville, and did so for some time until be changed bis mind and broke bis promise. The money was due and to be paid at Asheville in this State, and should have been paid there, and bis failure to do so and to provide for ber support at ber home, which was in Asheville, constituted the statutory offense. This very question was decided in People v. Meyer, 33 N. Y. Supp., p. 1123, it being a criminal proceeding for a like offense as here, that is, abandonment without providing for the wife’s support. Judge Goff said: “This was separation, not abandonment; and s.o long as tbe appellant continued to pay tbe stipulated sum be did not abandon bis wife. Whether tbe separation took place in tbe city of Brooklyn or in tbe city of New York is immaterial. Tbe material question is, Where did tbe abandonment take place if tbe appellant did abandon bis wife? Tbe evidence shows that after tbe separation tbe wife left Brooklyn and took .up her residence in New York, and that at tbe time when tbe complaint was made she was actually residing in tbe latter city. Tbe appellant was bound to pay tbe stipulated sum to bis wife no matter where she resided. He, having agreed to tbe voluntary separation, was precluded from controlling her choice as to a place of residence. His domicile was no longer her domicile, and therefore she bad a right to take up her residence in New York. It is conceded that be failed to pay the stipulated $15 per week, that by bis own action be reduced tbe payment to $12 per week, and finally offered her $3 a week, wbicb tbe trustee refused. Tbe criminal law cannot enforce tbe observance of contracts; neither will tbe authorities institute or prosecute’ proceedings of a criminal nature for such a purpose. Did tbe appellant abandon bis wife and child in tbe city of New York without providing for and furnishing them with adequate means of support, so that there would be danger of their becoming a burden on tbe public ? That was tbe question for tbe magistrate to decide, and be decided it affirmatively and, in my opinion, correctly.” With more reason can it be said that where tbe husband willfully abandons bis wife be cannot direct her choice of residence. It would be allowing him to take advantage of bis own wrong, if we should so decide. Tbe crime, therefore, was committed in Buncombe County, where she lived. Tbe jury convicted him of willful abandonment of and failure to support bis wife, wbicb means that bis acts were without justification.

There are two elements of this offense — willful abandonment and failure to support — and both must be alleged and proved. S. v. Toney, 162 N. C., 635; S. v. May, 132 N. C., 1021; S. v. Smith, 164 N. C., 476; S. v. Hopkins, 130 N. C., 647. Abandonment is not a continuing offense, day by day (S. v. Hannon, 168 N. C., 215), but tbe duty to support tbe wife is a continuing one during tbe existence of tbe marital union, and must be performed unless there is some legal excuse for nonperformance of it, and when defendant withdrew bis support from bis wife be became indictable under tbe. statute, even though be lived in another State and bad kept bis promise and supported bis wife for several years. His last delinquency must fix tbe beginning of bis criminal liability.

No error.  