State v. Outlaw , 242 N.C. 220 ( 1955 )

87 S.E.2d 303 (1955) 242 N.C. 220

STATE
v.
Charles OUTLAW.

No. 506.

Supreme Court of North Carolina.

May 4, 1955.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, for the State.

Max L. Childers, Hugh W. Johnston, Gastonia, for defendant appellant.

WINBORNE, Justice.

While on this appeal no point is made of the fact that the name of defendant is not mentioned in the affidavit upon which the warrant on which he stands charged is based, it appears upon the face of the record that his name does appear in the warrant and that the warrant expressly refers to the affidavit. Therefore, in the light of the holdings of this Court in the case of State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133, such defect would not be fatal.

However, defendant moves in this Court in arrest of judgment chiefly upon this ground: That upon the face of the record a fatal defect appears in that the warrant fails to charge defendant with the commission of any criminal offense either under G.S. § 14-322 or G.S. § 14-325.

In this connection G.S. § 14-322, as it is now amended, declares in pertinent part that: "If any husband shall willfully abandon his wife without providing her with adequate support, or if any father * * * shall willfully abandon his * * * child or children, whether natural or adopted, without providing adequate support for such child or children, he * * * shall be guilty of a misdemeanor."

This Court, recently considering the provisions of G.S. § 14-322, as above quoted, in the case of State v. Lucas, N.C., 86 S.E.2d 770, 772, opinion by Bobbitt, J., restated the principle therein that in a prosecution thereunder "the State must establish (1) a willful abandonment, and (2) a willful failure to provide adequate support", citing cases. And in the Lucas case the Court went on to declare that "G.S. § 14-322 now defines clearly two separate and distinct offenses. If the State desires to prosecute for both offenses, each offense should be fully charged in a separate bill of indictment or as a separate count in the bill of indictment."

Testing the warrant in present case by these principles interpretive of the provisions of G.S. § 14-322 it appears that the warrant fails to charge willful abandonment of either the wife or the children. Hence defendant was found guilty of an offense with which he is not charged.

Moreover, G.S. § 14-325 declares in pertinent part: "If any husband, while living with his wife, shall willfully neglect to provide adequate support of such wife or the children which he has begotten upon her, he shall be guilty of a misdemeanor. * * *"

Testing the warrant here under consideration by the provision of G.S. § 14-325, as just quoted, it is seen that there is a failure to allege that defendant committed the offense charged "while living with his wife." And the verdict rendered by the Judge of the Domestic Relations Court does not purport to be accordant with or pursuant to the provisions of G.S. § 14-325.

In the light of the factual situation thus portrayed, the warrant is not sufficient to support the conviction of defendant as shown in the record, and the judgment pursuant thereto.

Nevertheless if it be deemed advisable, a new prosecution may be instituted.

In the light of this opinion the motion in arrest of judgment is allowed.

Judgment arrested.

BARNHILL, C. J., took no part in the consideration or decision of this case.