STATE
v.
Joseph L. LUCAS.
No. 363.
Supreme Court of North Carolina.
April 13, 1955.*772 Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
Ottway Burton, Asheboro, for defendant, appellant.
BOBBITT, Justice.
Since a new trial is awarded for reasons set out below, we refrain from further narration and analysis of the evidence in the record before us. Careful consideration of such evidence, in the light most favorable to the State, discloses that it was sufficient for submission to the jury under appropriate instructions. Hence, the assignment of error, directed to the court's denial of defendant's motion for judgment of nonsuit, is overruled.
In a prosecution under G.S. § 14-322, the State must establish (1) a willful abandonment, and (2) a willful failure to provide adequate support. State v. Carson, 228 N.C. 151, 44 S.E.2d 721; State v. Campo, 233 N.C. 79, 62 S.E.2d 500. Proof of a wrongful discontinuance of cohabitation is not in itself sufficient to support a conviction. As stated by Barnhill, J., (now C. J.,), in State v. Carson, supra [228 N.C. 151, 44 S.E.2d 722]: "A husband is not compelled to live with his wife and his refusal to do so does not constitute a criminal offense so long as he provides adequate support. Hyder v. Hyder, 215 N.C. 239, 1 S.E.2d 540. His act becomes criminal when and only when he, having willfully or wrongfully separated himself from his wife, intentionally and without just cause or excuse, ceases to provide adequate support for her according to his means and station in life. State v. Hooker, 186 N.C. 761, 120 S.E. 449."
The defendant is required to provide support commensurate with his ability. State v. Clark, 234 N.C. 192, 66 S.E.2d 669; State v. Love, 238 N.C. 283, 77 S.E.2d 501.
While the two elements stated above must be established, the abandonment and the failure to provide adequate support may be so closely interrelated, under the circumstances of a particular case, that the willful abandonment may be a significant factor in determining whether the failure to provide adequate support was willful. This would be true where a defendant, incident to the willful abandonment, willfully leaves a community where he is employed or may be employed at substantial wages and goes into a new community *773 where there is no reasonable prospect of equally satisfactory employment.
If defendant failed to provide adequate support for his wife after he left in October, 1953, his earnings and his earning capacity were relevant and vital factors bearing upon the alleged willfulness of his failure to meet this marital obligation. The challenged excerpt from the charge, in stating in effect that defendant's earning capacity made no difference, is erroneous. Too, the further statement that there would be no willful failure to support "if a man is out of work or if he is sick or in ill health, and * * * has no income or earning capacity," while correct as a general proposition, would seem to suggest that a failure to provide adequate support is willful unless a man on account of illness or inability to find work has no income or earning capacity. In any event, the instruction does not apply the law to one of the crucial questions presented for decision by the jury. The evidence here discloses that defendant had earnings and earning capacity and in some measure was making provision for the support of his wife. On this phase of the case, the adequacy of such support and the willfulness of defendant's failure to do more were the crucial questions for decision.
For errors in the charge as indicated above, there must be a new trial. Hence, other assignments of error, which involve questions which may not arise upon such new trial, need not be discussed. Even so, we deem it appropriate to call attention to the significance of the statutory changes set out below in relation to the bill of indictment on which this prosecution is based.
C.S. § 4447 provided: "Abandonment of family by husband. 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."
It was decided, by a divided Court, in State v. Bell, 184 N.C. 701, 115 S.E. 190, 200, that this statute created two separate offenses, as if worded as follows: "`If any husband shall willfully abandon his wife without providing adequate support for such wife, he shall be guilty of a misdemeanor, and if he shall willfully abandon the children which he may have begotten upon her without providing adequate support for such children, he shall be guilty of a misdemeanor.'"
In State v. Bell, supra, the defendant was tried and convicted upon the first count of a three-count bill, which separately charged him with the willful abandonment of his children without providing adequate support for them.
C.S. § 4447 was amended by ch. 290, Public Laws of 1925, and as amended was codified as G.S. § 14-322 in Volume 1 of the General Statutes of 1943. Thereafter, G.S. § 14-322 was amended by ch. 810, Public Laws of 1949. As amended in 1949, the statute is now codified as G.S. § 14-322 in Volume 1B of the (Recompiled) General Statutes and is worded as follows:
"Abandonment by husband or parent. If any husband shall willfully abandon his wife without providing her with adequate support, or if any father or mother shall willfully abandon his or her child or children, whether natural or adopted, without providing adequate support for such child or children, he or she shall be guilty of a misdemeanor: Provided, that the abandonment of children by the father or mother 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."
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.
The bill of indictment in this case sufficiently charges that defendant willfully abandoned his wife without providing adequate support for her. However, it does *774 not charge that defendant abandoned his child. Hence, it is insufficient as an indictment for the offense of willfully abandoning his child without providing adequate support for her. However, by the express terms of the statute, this is a continuing offense. State v. Jones, 201 N.C. 424, 160 S.E. 468. The solicitor, if he deems it advisable, may proceed on a new bill and move that the cases be consolidated for trial.
New trial.
BARNHILL, C. J., took no part in the consideration or decision of this case.