State v. . Vickers

Adams, J. It is provided by statute that upon any conviction for abandonment tbe judge having jurisdiction may, in bis discretion, make' such order as in his judgment will best provide for the support of the deserted wife and children from the property or labor of the defendant. C. S., 4449. It was by virtue of this authority that the trial court adjudged that the defendant should pay into the office of the clerk a stated sum at the beginning of each month and should secure compliance with the order by the execution of a penal bond in the sum of $1,000. The defendant contends that the period or term of payment is indefinite; that the judgment is conditional or alternative, and that the custody of the children was not an issue before the court. We do not concur in the position that the sentence is conditional or alternative as in S. v. Perkins, 82 N. C., 682, or that the judgment was suspended in accordance with the principle laid down in S. v. Hardin, 183 N. C., 815, and in previous decisions. The effect of the last paragraph in the judgment was merely to suspend the execution in case of compliance by the defendant with certain conditions. S. v. Schlichter, 194 N. C., 217; S. v. McAfee, 189 N. C., 320; S. v. Vickers, 184 N. C., 676. We are of opinion, however, that the judgment is indefinite in certain of its terms. It was argued on behalf of the State that the act of 1925 (Public Laws, ch. 290), which provides that the abandonment of children by the father shall constitute a continuing offense and shall not be barred until the youngest living child shall arrive at the age of 18 years, is in effect a suspended execution as to the minor children for a definite period of time. On the other hand it is contended that if this be admitted the judgment provides for the payment of $90 monthly for an indefinite period, and that after the children may have reached the age of 18 years the defendant would still be compelled to pay to his wife the entire sum, a portion of which was manifestly intended for the support of the children. The defendant contends that the judgment is subject to the further objection that a penal bond in the sum of $1,000 is required without any definite order for the disbursement of the penalty in case of a breach, and that the last paragraph of the judgment is susceptible of the interpretation that the defendant will be subject to imprisonment in case of his failure to make the monthly payments although the penalty of the bond has been paid into the office of the clerk. The judgment should be more definite both as to the time of payment and as to the amount which the wife should be entitled to in case the *242 allowance is no longer applicable to the support of the children. The cause is therefore remanded to the end that the terms of the order made pursuant to section 4449 be more definitely prescribed and set forth in the judgment. Remanded.