State v. Beam

• Decision Date: 25 May 1921
• Docket Number: 533.
• Parties: STATE v. BEAM.
• Court: North Carolina Supreme Court

107 S.E. 429

181 N.C. 597

STATE v. BEAM.

No. 533.

Supreme Court of North Carolina

May 25, 1921

Appeal from Superior Court, Buncombe County; Long, Judge.

Walter Beam was convicted of willfully abandoning his wife without providing adequate support for her, and he appeals. No error.

This is an indictment of the defendant for the willful abandonment of his wife without providing adequate support for her. Consol Statutes, § 4447. They were married on January 25, 1912, and he abandoned her on April 5, 1916, but they lived together a short time in the fall of 1916, when he again abandoned her and went to Georgia to live; the wife remaining in Asheville N.C. The defendant provided his wife with money, by remittances from time to time, for her 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.

There are two elements of the offense of the abandonment of a wife without providing adequate support for her, denounced by C.S § 4447, willful abandonment and failure to support, and both must be alleged and proved.

Abandonment of a wife is not a continuing offense day by day, but the duty to support the wife is continuing during the existence of the marital union, and must be performed by the husband unless there is some legal excuse for nonperformance.

Mark W Brown, of Asheville, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

There are only two material questions in the case.

First. 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 his wife at Asheville, where they lived, in April, 1916, and went to the state of Georgia, making his home there. He promised to send her money from time to time for her support, and did so, until they 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 he again abandoned her and returned to Georgia, but continued to make regular remittances of money to her at Asheville for her support and maintenance, until a time within two years before this indictment was found by the grand jury, when he ceased to do so. This failure on his part to continue in the performance of his duty to support her was, in law, a fresh act of "abandonment and failure to support" within the meaning of the statute (Consol. Statutes, § 4447), and it has been so expressly held upon a state of facts identical with those we find in this record. State v. Davis, 79 N.C. 603; State v. Hannon, 168 N.C. 215, 83 S.E. 701.

Second. 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 her at Asheville, and did so for some time, until he changed his mind and broke his promise. The money was due, and to be paid, at Asheville in this state, and should have been paid there, and his failure to do so and to provide for her support at her home, which was in Asheville, constituted the statutory offense. This very question was decided in People v....