State v. Jones
| Decision Date | 07 October 1931 |
| Docket Number | No. 159.,159. |
| Citation | 160 S.E. 468 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JONES. |
Appeal from Superior Court, Greene County; Devin, Judge.
Lee Jones was convicted for willful abandonment of his children, and he appeals. No error.
The defendant was indicted for the willful abandonment of his children in breach of the following statute: "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: Provided, that the abandonment of children by the father shall constitute a continuing offense and shall not be barred by any statute of limitations until the youngest living child shall arrive at the age of eighteen years." C. S. § 4447, Pub. Laws 1925, c. 290.
The defendant pleaded former jeopardy and former conviction and moved that the action be dismissed for the reason that he had previously been indicted and convicted of the same offense. The motion was overruled and the defendant excepted. At the conclusion of the evidence the motion was renewed and again denied, and again the defendant excepted.
After his conviction he moved in arrest of judgment, and his motion was denied. Judgment was pronounced, and he appealed upon assigned error.
Dennis G. Brummitt, Atty. Gen., and A. A. P. Seawell, Asst. Atty. Gen., for the State.
Pittman & Eure, of Ayden, for appellant.
On November 14, 1929, the defendant was indicted in the county court of Greene county for the abandonment of his wife and children. State v. Bell, 184 N. C. 701, 115 S. E. 190. He was arrested on December 18, 1929, and tried, and was convicted, and on December 24, 1929, he paid into court, for the use of his wife and children, the sum of $200, to be disbursed by the clerk in monthly installments of $30. Judgment was suspended and he was discharged October 14, 1930. The indictment on which he was tried in the present case was returned by the grand jury at the December term, 1930, of the superior court.
The principal exception involves a construction of that part of the statute which provides "that the abandonment of children by the father shall constitute a continuing offense and shall not be barred by any statute of limitations until the youngest living child shall arrive at the age of eighteen years, " the defendant contending that this clause was designed merely to prevent the statute from barring an indictment after two years from the first act of desertion.
We do not concur in this interpretation. A recognized principle of the common law, as well as of natural and moral law, imposes upon a father the duty of providing for the maintenance of his minor children, the duty to support and the right to custody and service being reciprocal. This obligation continues until the children in legal contemplation are reasonably able to provide for themselves and is not abrogated by the father...
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...280, 162 A. 709, 710 (1932), in discussing the nature of a continuing offense, we adopted a definition taken from State v. Jones, 201 N.C. 424, 426, 160 S.E. 468 (1931): " 'Wharton defines a continuing offense as a transaction or a series of acts set on foot by a single impulse, and operate......
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...this Court discussed, in reaching its decision, the nature of a continuing offense. It adopted a definition taken from State v. Jones, 201 N.C. 424, 160 S.E. 468, 469, as follows: 'Wharton defines a continuing offense as a transaction or a series of acts set on foot by a single impulse, and......
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...father is under a primary legal duty to support his minor child, In re Ten Hoopen's Custody, 202 N.C. 223, 162 S.E. 619; State v. Jones, 201 N.C. 424, 160 S.E. 468; Wise v. Raynor, 200 N.C. 567, 157 S.E. 853, the mother's promise to care for and maintain the child is sufficient consideratio......