State v. Hopkins
| Decision Date | 25 March 1902 |
| Citation | 40 S.E. 973,130 N.C. 647 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. HOPKINS. |
HUSBAND AND WIFE—WILLFUL ABANDONMENT — NONSUPPORT — PROSECUTION-DEFENSE—WIFE'S ADULTERY—QUESTION FOR JURY.
1. Where a wife has been guilty of adultery, her husband is not liable to prosecution under Code, § 970, providing that a husband who willfully abandons his wife without providing adequate support for her and their children is guilty of a misdemeanor.
2. Where, in a prosecution for willful abandonment and failure to support, under Code, § 970, the husband, who had commenced suit for divorce, set up the adultery of the wife, and that a child was not his, as a defense, the question as to whether the abandonment was in good faith, and for the causes assigned, should be submitted to the jury, independent of the result of their finding on the collateral question of whether the wife was guilty of adultery.
Appeal from superior court, Pamlico county; Winston, Judge.
R. B. Hopkins was convicted of abandonment and failure to support his wife and children, and he appeals. Reversed.
D. L. Ward, for appellant
The Attorney General, for the State.
This is an indictment, under section 970 of the Code, for abandonment and failing to support the defendant's wife and children. The defendant charged his wife with infidelity and adultery with one Tom Daniels, drove her from home, and commenced an action for divorce; and the wife has indicted him for abandonment The wife testified to her fidelity, denying the charge that she had been guilty of illicit intercourse with Tom Daniels or any one else; that the defendant drove her from home, and has neither fed nor clothed her since doing so; but that defendant has supported the children, except the baby, which she has with her, and which he says is not his child. The defendant testified that he had seen Daniels in bed with his wife; and his daughter, 15 years old, testified that she had seen Daniels in bed with her mother; and a witness by the name of Joe Daniels testified that he had seen the prosecutrix inbed with Tom Daniels. Upon this and other evidence in the case, the court charged the jury: "If the wife is unfaithful to her
husband, —is not a chaste woman, —the obligation to support her is removed. If you find from the evidence that the wife was guilty of adultery with Daniels, and was unfaithful to the defendant, you return for your verdict, 'Not guilty.' If you find from the evidence that she was not unfaithful to him, —remained a true wife, —then you will return, 'Guilty, ' for your verdict; for he admits that he drove her from home, and has not since supported her." Defendant excepted. The jury returned a verdict of guilty, and the court sentenced the defendant to two years in the county jail. Defendant again excepted.
The statute under which the aefendant Is indicted (section 970 of the Code) is as follows: "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." So It is seen that there must be a willful abandonment, and a failure to support his wife, and the children he may have begotten on her. To constitute the criminal offense, there must be both an abandonment and a failure to support One without the other does not constitute the criminal offense, and, to constitute the criminal offense, the abandonment must be willful. This word "willful, " as used In the statute, must mean more than an intention not to live with the wife. If it does not, the husband would be compelled to live with and support his wife, although she was living in open and notorious adultery. We cannot think this is so, and the court, in the trial of this case, recognized this as not being the law, by telling the jury that if the prosecutrix had been guilty of adultery with Tom Daniels, and unfaithful to the defendant, he was not bound to support her. There Is no objection to this statement as a proposition of law, but the...
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State v. Falkner
...to make out its case; while with us such is a prerequisite according to the express terms of the statute. The case of State v. Hopkins, 130 N.C. 647, 40 S.E. 973, must be overruled if his honor's charge in the case is to be upheld; and this would carry with it a reversal of State v. Smith, ......
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Fowler v. Ross
...In legal effect, it charges no offense whatever, because it fails to charge the acts necessary to constitute an offense. State v. Hopkins, 130 N.C. 647, 40 S.E. 973 The opinion in the Hopkins case, cited by the court, said, 40 S.E. at page 974: "* * * To constitute the criminal offense, the......
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State v. Sneed
...162 N. C. 635, 78 S. E. 156; State v. May, 132 N. C. 1021, 43 S. E. 819; State v. Smith, 164 N. C. 476, 79 S. E. 979; State v. Hopkins, 130 N. C. 647, 40 S. E. 973. Abandonment is not a continuing offense, day by day (State v. Hannon, 168 N. O. 215, 83 S. E. 701), but the duty to support th......
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State v. May
...In legal effect, it charges no offense whatever, because it fails to charge the acts necessary to constitute an offense. State v. Hopkins, 130 N. C. 647, 40 S. E. 973. The first count cannot be aided by reference to the second count. It is settled that "a count in a bill of indictment must ......