State v. . Kerby

The indictment is as follows: "The jurors for the State, upon their oaths, present, that J. Nelson Kerby, late of Alexander County, on 1 January, 1890, with force and arms, at and in said county, while living with his wife, one Mary Kerby, unlawfully and willfully did neglect to provide an adequate support for the children, which he had begotten upon her, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

The defendant moved to quash, and the motion was allowed, and the solicitor for the State appealed. The indictment follows the words of the statute (The Code, sec. 972), which provides that where the husband, while living with his wife, shall willfully fail to provide adequate support for such wife, or the children which he has begotten upon her, he shall (559) be guilty of a misdemeanor. It is unquestionably as much a distinct criminal offense to fail to make sufficient provision for the children as for the wife, and the solicitor might charge the omission to discharge either or both of the duties the disregard of which the law is intended to punish.

It was not necessary to aver in the indictment that no justice of the peace had taken cognizance of the offense charged for twelve months after it was committed, because the fact, if true, that the bill had been sent before the jurisdiction of the higher court attached was matter of defense, to be shown on the trial; non constat upon the motion to quash, on the face of the indictment, but what it may be shown that the offense was committed twelve months before the indictment was found. S. v. Porter,101 N.C. 713; S. v. Moore, 82 N.C. 659; S. v. Taylor, 83 N.C. 601; S.v. Earnest, 98 N.C. 740; S. v. Cunningham, 94 N.C. 824; S. v. Shelley,98 N.C. 673.

We can conceive of no grounds for sustaining defendant's motion, except those stated. The judgment quashing the indictment is reversed.

New trial.

Cited: S. v. Carpenter, 111 N.C. 707; Sanders v. Sanders, 167 N.C. 319.

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