State v. Bell

• Decision Date: 08 November 1922
• Docket Number: 81.
• Parties: STATE v. BELL.
• Court: North Carolina Supreme Court

115 S.E. 190

184 N.C. 701

STATE v. BELL.

No. 81.

Supreme Court of North Carolina

November 8, 1922

Appeal from Superior Court, Vance County; Allen, Judge.

J. E C. Bell was convicted of willfully abandoning his children without providing adequate support, and he appeals. No error.

Stacy and Walker, JJ., dissenting.

The language of the title of a statute is not permitted to control expressions in the body that conflict with it.

The compiler's preparation of a heading for a statute in no way affects the construction of the language when its meaning is perfectly obvious, but where, in the course of a half century, a statute has been re-enacted time after time and the first title is changed and the reenacted statute thereafter bears substantially the amended caption throughout, the court is not at liberty to assume that such caption indicates merely the compiler's construction and excludes that of the Legislature.

On December 20, 1921, Mabel K. Bell made an affidavit before a justice of the peace of Vance county that the defendant, her divorced husband, had willfully abandoned and failed and refused to support his four children of the age of four, six eight, and eleven years, respectively; and thereupon she obtained a warrant under which the defendant was arrested and afterward bound to the superior court. At the March term, 1922, the grand jury returned a true bill containing three counts charging the defendant (1) with the willful abandonment of his children without providing for them adequate support, (2) with the willful abandonment of his wife without providing adequate support for her and the children, and (3) with willfully failing to provide adequate support for her and the children while he was living with his wife. The bill is indorsed, "Abandonment of Children." At the same term the case was called for trial and the state's witnesses were examined; the defendant declined to offer any evidence and relied upon the statute of limitations.

Following is a recapitulation of so much of the evidence as is necessary to an understanding of the controversy: At the March term, 1921, Mabel Bell was granted a decree divorcing her from the defendant. On or about June 1, 1919, the defendant without just cause abandoned her and the children without providing for them an adequate support, and afterward admitted that he had not taken care of the children and would not care for them. The wife inherited an estate worth about $20,000 on which she had placed a $10,000 mortgage to secure two bonding companies who were prosecuting the defendant; a part of it she had spent for the children. At the time of the trial she was getting practically nothing from the estate and her income was not sufficient for the support of the children. On December 1, 1920, the defendant and his wife executed to R. S. McCoin a deed of trust on her real and personal property for the purpose of paying her debts, and taxes, and collecting dividends, etc., and turning over to her a stated sum every month for the support of herself and the children.

In the fall of 1921 one of the children was sick in the hospital, and the defendant told the trustee that he would do what he could for the children and promised to send $200 and certain tax money claimed to be due him, but that he would not contribute to the support of his divorced wife. At the Christmas of 1920 the defendant gave the children a pony, and at the Christmas of 1921 he sent the oldest a book, the youngest a doll, and a basket to each of the others.

The defendant's motion for nonsuit was denied, and his honor instructed the jury to return a verdict of guilty if they believed all the evidence and were satisfied beyond a reasonable doubt that the defendant furnished the children with presents testified to and offered or agreed with the trustee to furnish means for supporting them, and after so doing and agreeing, if it was within two years, he willfully failed to furnish them adequate support. There was a general verdict of guilty, and thereupon his honor adjudged that the defendant should pay into the court $50 a month for the support of his children. The defendant appealed.

Hicks & Son, of Henderson, for appellant.

James S. Manning, Atty. Gen., Frank Nash, Asst. Atty. Gen., and T. M. Pittman, of Henderson, for the State.

ADAMS J.

The statutes making abandonment a misdemeanor were enacted in 1869. P. L. 1868-69, c. 209. The first section of the original act is now section 4447 of the Consolidated Statutes, the second is section 4450, and the third, section 4448. Section 4449 was enacted in 1917. The state contends that the defendant is guilty of a breach of the section first named above (4447) and concedes that, if he is not, he should be discharged. The prosecution further admits that the defendant cannot be convicted if his guilt is legally dependent on his abandonment of his wife because he abandoned her in June, 1919, more than two years before the warrant was issued or the bill of indictment was returned, and has not renewed as to her his marital obligation. Indeed, at the March term; 1921, of the superior court, she obtained a decree dissolving the bonds of matrimony. The appeal, therefore, presents these two questions:

(1) Is a former husband from whom his wife (now living) has procured an absolute divorce, subject to prosecution under section 4447 for the subsequent abandonment of their children without providing such children an adequate support?

(2) If so, is the prosecution barred by the statute of limitations?

With respect to the first interrogatory, the defendant's contention, concisely stated, is this: The statute (section 4447) contemplates the husband's abandonment of the wife without providing adequate support for her and their children, if any, and excludes the interpretation that the word "abandonment" applies equally to the children. In other words, the defendant contends that he is not guilty of a breach of this statute, even if it be granted that he willfully abandoned the children begotten of his wife without providing for their adequate support. There is, in our opinion, no sound reason for this limited construction. Since conditions growing out of the domestic relation exact of the wife the more immediate association, care, nurture, and tuition of the child, it has popularly been conceived that the abandonment of the wife involves the abandonment of the children. Doubtless the decisions are in part responsible for this conception; for in all the cases in which the husband was convicted of abandonment without providing support for the wife and child they were ostensibly living together, and in fact he abandoned his child when he abandoned his wife. No so here. The husband and the wife are divorced.

The jury returned a general verdict of guilty. It has repeatedly been held that where there are several counts in an indictment, and the evidence applies to one count only, a general verdict will be presumed to have been rendered on the count to which the evidence applies. State v. Long, 52 N.C. 24; State v. May, 132 N.C. 1021, 43 S.E. 819; State v. Gregory, 153 N.C. 646, 69 S.E. 674; State v. Strange, 183 N.C. 775, 111 S.E. 350. From his honor's instruction to the jury and from the judgment, which makes provision for the children only, we may legitimately infer that the prosecution was confined to the count which charges the defendant with the willful abandonment of the children, or, at any rate, that his honor concluded that the willful abandonment of the children without providing adequate support for them--regardless of the legal status of the wife--was a breach of the statute. The question first stated above, then, may be reduced to this: Does the first count in the indictment charge a criminal offense? The statute (C. S. § 4447) is as follows:

"If any husband shall willfully 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."

We have decided, in several cases in which the husband was indicted for abandonment and failure to provide support, that both these elements must be established, and we adhere to these precedents. But the former decisions of the court do not determine the controversy, for the question in this appeal has not heretofore been presented for consideration. We must resort therefore to the established principles of statutory construction. Scrupulously observing the constitutional separation of the legislative and the supreme judicial powers of the government, we adhere to the fundamental principle that it is the duty of the court, not to make the law, but to expound it, and to that end to ascertain and give effect to the intention of the Legislature, or if the legislative intent cannot be discovered to give the statute such reasonable construction as may be consistent with the general principles of law. This is reasonable, for the courts impute to the Legislature as a co-ordinate branch of the government knowledge of the settled principles and maxims of statutory construction and assume that statutes are enacted with a view to their interpretation according to such maxims and principles, as an effective means of assuring certainty and uniformity in the administration of the law. In our endeavor to ascertain the purpose of the statute, we should also have due regard to the rule that the spirit and reason of the law shall prevail over its letter, especially where a literal construction would work an obvious injustice. Herring v Dixon, 122 N.C. 425, 29 S.E. 368; Wilson v. Markley, 133 N.C. 616, 45 S.E. 1023; Fortune v. Commrs., 140 N.C. 322, 52 S.E. 950; McLeod v. Com'rs, 148 N.C. 79, 61 S.E. 605; 25 R. C. L. 955 et seq.; 36 Cyc. 1102 et...