C. S., 4447, under which the defendant is indicted, provides as follows: “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 will be observed that a willful abandonment is the conduct which is condemned by this enactment of the Legislature. Being a penal statute, we must apply the rule of strict construction, and we are not at liberty to extend its terms, by implication, to include cases not clearly within its meaning. S. v. Colonial Club, 154 N. C., 177; S. v. R. R., 122 N. C., 1052. "Willfulness is an essential element of the crime, and this must be found by the jury. The issue, upon an indictment for a violation qf the present law, is the alleged guilt of the defendant. He enters on the trial with the common-law presumption of innocence in his favor. When the State has shown an abandonment and the defendant’s failure to provide adequate support, the jury may infer from these facts, together with the attendant circumstances, and they would be warranted in finding, if they are so 'satisfied beyond a reasonable doubt, that it had been done intentionally, without just cause or legal excuse, i. e., willfully. S. v. Taylor, 175 N. C., 833.
The position just stated has been approved by us in a number of carefully considered decisions. “'The abandonment must be willful, that is, without just cause or excuse- — unjustifiable and wrongful.” S. v. Smith, 164 N. C., 475. Again, in S. v. Morgan, 136 N. C., 628, Mr. Justice Walker, speaking for a unanimous Court, says: “If the act may be innocent or not according to the intent with which it is done, or if its criminality depends upon the intent, it is incumbent oil the State to show the intent or to show the facts and circumstances from which the intent may be inferred by the jury, and it is necessary that the jury should find the intent as a fact before the defendant charged with the *796commission of tbe act can be adjudged guilty of a crime,” citing S. v. McDonald, 133 N. C., 680. Unless tbe willfulness of tbe defendant’s conduct is established, tbe offense is not made out; and tbis is a question 'of fact for tbe jury, under all tbe evidence, and not for tbe court. S. v. King, 86 N. C., 603; S. v. Wolf, 122 N. C., 1019; S. v. Martin, 141 N. C., 832.
In tbis connection it may be well to observe that tbe next section, C. S., 4448, dealing with what shall be deemed presumptive evidence of a willful abandonment, requires tbe showing of something more than a mere separation and failure to provide adequate support. These circumstances having been established, “then the fact that such husband neglects applying himself to some honest calling for tbe support of himself and family, and is found sauntering about, endeavoring to maintain himself by gambling or other undue means, or is a common frequenter of drinking houses, or is a known common drunkard, shall be presumptive evidence that such abandonment and neglect is willful.” Thus it would appear that the Legislature selected the words of the statute, under which the defendant is indicted, with studied care and deliberation, and with a full appreciation of their meaning. .
The defendant is not required to offer any evidence, and his failure to do so is not to be taken against him. S. v. Smith, supra. Hence, upon the question of his wife’s alleged infidelity, or unfaithfulness, the burden of proving the issue, as distinguished from the duty of going forward with the evidence, is not shifted to the defendant. He may put the question of her chastity in issue, by cross-examination or otherwise, but this does not reverse the position of himself and that of his wife and make him the prosecutor and his wife the defendant. She is not on trial. The burden is still with the State, under all the evidence, to satisfy the jury, beyond a reasonable doubt, of the defendant’s guilt. S. v. Woodly, 47 N. C., 276; S. v. Wilbourne, 87 N. C., 529; S. v. Hopkins, 130 N. C., 647; S. v. Connor, 142 N. C., 700; S. v. Leeper, 146 N. C., 655, and S. v. R. R., 149 N. C., 470.
It is sometimes said that the burden of producing evidence rests upon the party best able to sustain it, because of facts and circumstances peculiarly within his knowledge. Thus it was held in Farrell v. State, 32 Ala., 557, that the existence of a license being a fact peculiarly within the knowledge of the party accused, it was incumbent upon him to show the license, even though the nonexistence thereof was the gravamen of the offense charged. To like effect, and for the same reason, are our own decisions. S. v. Morrison, 14 N. C., 299; S. v. Smith, 117 N. C., 809; S. v. Emery, 98 N. C., 670; S. v. Glenn, 118 N. C., 1194; S. v. Holmes, 120 N. C., 576. But in the instant case the alleged adultery of the defendant’s wife is not a fact peculiarly within the defendant’s *797own knowledge. Indeed, if this rule is to be invoked here — and we do not think it is — it might well be said that such is undoubtedly within the knowledge of the prosecutrix. At any rate, we hold that the raising of this question does not shift the burden of the issue to the defendant. Govan v. Cushing, 111 N. C., 458. On the other hand, in a case like the one at bar, where the husband is indicted for a willful abandonment and nonsupport, there is no presumption of law or of fact against the wife’s virtue. She not being on trial, the matter is left at large, and it is an open question, just like any other question of fact, to be determined by the jury. Certainly there is no presumption ihat she has committed adultery, or that she has been unfaithful to her marriage vow.
The position here taken, with respect to the burden of the issue, has been approved in a long line of decisions, and is nowhere better stated than by Ruffin, J., in S. v. Wilbourne, 87 N. C., 529, as follows: “The general rule most undoubtedly is that the truth of every averment, whether it be affirmative or negative, which is necessary to constitute the offense charged, must be established by the prosecutor. The rule itself is but another form of stating the proposition that every man charged with a criminal violation of the law is presumed to be innocent until shown to be guilty, and it is founded, it is said, upon principles of natural justice; and so forcibly has it commended itself, by its wisdom and humanity, to the consideration of this Court that it has never felt willing, whatever circumstances of difficulty might attend any given case, to disregard it.”
Of course, where an abandonment and nonsupport are both established or admitted, it may be necessary for the defendant to come forward with his evidence and proof, or else run the risk of an adverse verdict. But where there is no opposite presumption sufficient to overcome the presumption of innocence, the most that can be required of him, under our system of jurisprudence, is explanation, not exculpation. The defendant is not required to show his innocence. The State must establish his guilt beyond a reasonable doubt, and the burden of this ultimate issue never shifts. The laboring oar upon the question of guilt is constantly with the prosecution. S. v. Wilkerson, 164 N. C., 432.
In Shepard v. Tel. Co., 143 N. C., 244, the present Chief Justice, speaking for a unanimous Court, states the rule as follows: “In criminal cases, when a homicide with a deadly weapon is proved or admitted, there is a presumption of law that the killing is murder, and the burden is on the prisoner to prove all matters in mitigation or excuse to the satisfaction of the jury, S. v. Matthews, 142 N. C., 621; and when a totally independent defense is set up, as insanity, which is really another issue, S. v. Maywood, 94 N. C., 847, the burden of that issue is on the prisoner. But the burden of the issue as to the guilt of the prisoner, *798except where the law raises a presumption of law as distinguished from a presumption of fact, remains on the State throughout, and when evidence is offered to rebut the presumption of fact raised by the evidence, the burden is still on the State to satisfy the jury of the guilt of the prisoner upon the whole evidence. Notably, when the prisoner offers proof of an alibi, for example, which goes to the proof of the act. S. v. Josey, 64 N. C., 56.” This case has been approved in a number of later decisions. See Cox v. R. R., 149 N. C., 117; Winslow v. Hardware Co., 147 N. C., 275, and Shepard’s N. C. Citations.
“The rule as to the burden of proof is important and indispensable in the administration of justice, and constitutes a substantial right of the party upon whose adversary the burden rests. It should, therefore, be jealously guarded and rigidly enforced by the courts.” 22 C. J., 69; Hughes v. R. R. Co., 85 N. J. L., 212; Wigmore on Evidence, sec. 2483 et seq.
The case of S. v. Schweitzer, 57 Conn., 532, while apparently an opposite persuasive authority in support of his Honor’s charge, must be read in connection with the Connecticut statute which in terms is different from ours. Section 6416, General Statutes of Connecticut, provides: “Every person who shall unlawfully neglect or refuse to support his wife or children shall, upon conviction, be deemed guilty of a felony, and shall be imprisoned not more than one year, unless he shall show to the court before which the trial is had that, owing to physical incapacity or other good cause, he is unable to furnish such support,” etc.
It will be noted that the word “unlawfully” is used in the Connecticut statute, while in ours the word “willfully” is employed. An unlawful act is not necessarily willful. S. v. Morgan, 136 N. C., 628.
“The word ‘willful,’ used in a statute creating a criminal offense, means something more than an intention to do a thing. It implies the doing the act purposely and deliberately, indicating a purpose to do it, without authority — careless whether he has the right or not — in violation of law, and it is this which makes the criminal intent, without which one cannot be brought within the meaning of a criminal statute.” S. v. Whitener, 93 N. C., 590. The term unlawfully implies that an act is done, or not done, as the law allows, or requires; while the term willfully implies that the act is done knowingly and of stubborn purpose. S. v. Massey, 97 N. C., 465. Schweitzer’s case is thus distinguishable from the one at bar, for, under the Connecticut statute, the State is not required to show a willful ueglect in order to make out its case; while with us such is a prerequisite according to the express terms of the statute.
The case of S. v. Hopkins, 130 N. C., 647, must be overruled if his Honor’s charge in the instant ease is to be upheld; and this would carry with it a reversal of S. v. Smith, 164 N. C., 475, and S. v. Taylor, 175 *799N. C., 833. But it is said tbat, in these cases, the Court, by “judicial legislation,” has engrafted something into the statute without authority and contrary to the expressed intention of the Legislature. It is even suggested that adultery on the part of a wife is no excuse for the husband’s abandonment and failure to provide for her support. Though we have declared otherwise, it is said in criticism that these decisions belong to another day and to another age, and that we should now advance from such a “barbarism.” After mature reflection and earnest consideration, we are unwilling to overrule these cases. We think they correctly state the law on the subject of the burden of proof as it obtains in this jurisdiction. The decision in S. v. Hopkins, supra, was rendered nearly twenty years ago, and the numerous Legislatures which have assembled since that time, have not seen fit to amend or to make any change in the present statute. That a husband may not be convicted for abandoning an adulterous or unfaithful wife is a position so well fortified by every reasonable consideration, and by the force of its own righteousness, as to meet with the approval of the common judgment of men. To argue otherwise is but to complain at the standard of human conduct, established in accordance with the eternal fitness of things and in keeping with the everlasting verities. So far as our investigation discloses, no court has ever held to the contrary; and we are confident that our present construction is entirely permissible, and we think entirely correct, under the use of the words in the statute of “willfully abandon.”
It may not be amiss to remark that the defendant is not to be released or discharged; he is to be tried again. Furthermore, his wife is not without the civil remedies which are vouchsafed to her by the law. See C. S., 1667, and cases cited thereunder.
Upon a careful perusal of the record, we think the charge as applied to the defendant was misleading in its effect; and while the court’s, general charge, in other sections, placed the burden of proof upon the State in proper form, yet this specific instruction with respect to the wife’s alleged adultery was calculated to mislead, and in all probability did mislead the jury. S. v. Morgan, 136 N. C., 628. It is well settled that where there are conflicting instructions with respect to a material matter, a new trial must be granted, as the jury are not supposed to know which one of the two states the law correctly, and we cannot say they did not follow the erroneous instruction. Edwards v. R. R., 132 N. C., 99; Williams v. Haid, 118 N. C., 481; Tillett v. R. R., 115 N. C., 662.
The evidence offered by the defendant was in reply to the necessary .allegation that his conduct had been willful, but the law does not cast upon him the burden of disproving the criminal intent. This is .a fact which the State must establish, not only to the satisfaction of the jury, *800but beyond a reasonable doubt, before a verdict of guilty can be rendered against bim. The instruction of his Honor was equivalent to saying that, upon the question of intent, the burden was on the defendant to satisfy the jury that he had not acted willfully. It is true the instruction related to a specific fact, to wit, the alleged adultery of the wife; but this circumstance, and all the testimony bearing upon it, was competent only on the question of intent. In no other view was the evidence material and relevant.
For the error in the charge, as indicated, in placing too heavy a burden on the defendant, we are of opinion that the cause must be submitted to another jury, and it is so ordered.
New trial.