State v. Gossett, 393.

• Decision Date: 07 December 1932
• Docket Number: No. 393.,393.
• Citation: 166 S.E. 754,203 N.C. 641
• Court: North Carolina Supreme Court
• Parties: STATE. v. GOSSETT.

166 S.E. 754

203 N.C. 641

STATE.

v.GOSSETT.

No. 393.

Supreme Court of North Carolina.

Dec. 7, 1932.

Appeal from Superior Court, Guilford County; Shaw, Emergency Judge.

A. H. Gossett was convicted under an indictment charging abandonment and nonsup-port of his wife, and he appeals.

No error.

The defendant was indicted for abandonment and nonsupport of his wife. At the trial in the superior court he pleaded not guilty. The wife of defendant testified that, they were married in 1927 and lived together until January 30, 1932. She said: "Mr. Gossett was out at another house with another girl. I saw him when he came out with the girl and got in the car. He came home and of course he was mad with me, and we could not agree for three weeks after that, and he asked me to give him separation papers. In fact, he said he was not ever going to live with me any more * * * and I might as well give him separation papers, and I asked him just what would become of me and the baby, and he said he would take care of us." The state's witness further testified that the defendant came after her and took her to the office of an attorney in Greensboro. After the separation agreement was completed, it was submitted to Mrs. Gossett, and she said: "I started reading mine, and I was crying, of course, and I got down to something about some kind of support. I really do not understand the papers."

After the agreement was signed, the wife sold her living room suite for $10 and used the money to pay house rent. At the time of signing the defendant gave his wife $2, and afterwards bought groceries amounting to $2.25. He also gave her $4 with which to buy a pair of shoes. The separation agreement was dated January 30, 1932, and recites the marriage and the birth of a child named Harold Gossett, who was then four years of age, and continues as follows: "Whereas, the parties hereto have mutually agreed upon an immediate separation and do hereby agree to live separate and apart dur ing the remainder of their lives, being moved so to do for adequate reasons and not for mere volition or caprice, but because it is essential to their health and happiness as aforesaid, " etc. Each party released the other from all interest in real or personal property, and the mother was to have the care, custody, and control of the child, and the father was to have the privilege of visiting the child. The separation agreement was duly executed as provided by law.

The wife testified that after the separation agreement was signed the defendant, her husband, visited her and had sexual intercourse with her on the occasion of each visit She said: "I did that because I knew if I did not submit to him he would not come back and he would not give me anything." There was further evidence that the wife was a woman of good character, and that neighbors and friends had contributed to her support, as she was destitute. The warrant was issued on February 22, 1932. At the trial the defendant relied upon the separation agreement as a defense to the crime charged. There was a verdict of guilty, and from judgment pronounced thereon, sentencing the defendant to the roads for a period of twelve months, he appealed.

A. C. Davis and Shelley B. Caveness, both of Greensboro, for appellant.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

BROGDEN, J.

If a separation agreement is duly executed by a husband and wife, and thereafter the husband visits the wife from time to time, and upon each visit resumes the conjugal relationship, does such conduct invalidate the agreement?

Separation agreements, while not favored by our law, have been generally upheld when properly executed. The general principle governing the validity of such agreements is thus expressed in Taylor v. Taylor, 197 N. C. 197, 148 S. E. 171, 173: "It seems to be unquestioned that a...