State v. . Johnson

Stacy, 0. J., after stating the case: There is error in the instruction as to what constitutes an abandonment under the statute. “If any husband shall wilfully abandon his wife without providing adequate support for such wife, and the children which he may have begotten upon her, he shall be guilty of a misdemeanor.” C. S., 4447. An offending husband may be convicted of abandonment and nonsupport when — and *380 only wben — two things are established: First, a wilful abandonment of the 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. The instruction as given took away from the defendant the position of justification. S. v. Falkner, 182 N. C., 793. A lawful or justifiable abandonment on the part of a husband, although followed by wilful refusal or failure to provide adequate support for his wife and the children which he may have begotten upon her, is not the offense condemned by the statute. S. v. Bell, 184 N. C., 701. There are other exceptions appearing on the record, worthy of consideration, but as the matters to which they are addressed are not likely to arise on another hearing, we shall not consider them now. For error in the charge, as indicated, there must be a new trial; and it is so ordered. New trial.