The facts, were that in 1866, the defendant wilfully abandoned his wife, without providing her with adequate support, since which time he has never lived with her, nor in any manner provided for her maintenance. The defendant's counsel asked the Court to instruct the jury, that as the abandonment occurred prior to the ratification of the act of April 12th, 1869, that defendant was not guilty, which the Court declined doing, but informed the jury if they believed the facts to be true, as testified to by the witnesses, then defendant was guilty, to which defendant excepted. Verdict guilty. Rule, etc. Appeal to the Supreme Court. The Court at first, thought that the decision of this case might be put upon the question of jurisdiction alone, and we were disposed to put the decision upon that ground, and thereby save the scandal that must and often does arise by the investigation of such cases in the Superior Courts; but upon a close examination of the wording of the statute, we think this cannot be done, as the act authorizes the infliction of both the fine and imprisonment, and (497) not merely a fine or imprisonment for one month, as prescribed in Article IV, Section 33, of the Constitution.
The words, wilful abandonment, as used in the statute, include the act of separation, and not merely its continuance; and as this abandonment took place before the passage of the statute under which the defendant is indicted, he cannot be convicted.
Justices of the Peace may entertain jurisdiction of this offence under the act of 1869, chapter 178, by observing the rules prescribed in section 6, of sub-chapter IV. of said act, and we think it the more appropriate jurisdiction.
Per curiam.
There is error.
Cited: S. v. Dunston, 78 N.C. 420; S. v. Bell, 184 N.C. 717. *Page 385