dissenting: The defendant is indicted under C. S., 447, which provides: “If any husband shall willfully abandon his wife, without providing adequate support for such wife and the children which he may have gotten upon her, he shall be guilty of a misdemeanor.” There is no proviso or exception in the statute.
The defendant testified that he had left his wife, and defiantly added that he had not contributed to her support, and does not intend to do so, nor to 'live with her. His contention is that though he has abandoned his wife and is not giving her any support — which are the acts which the statute makes a misdemeanor — he cannot be convicted unless his wife shall show beyond a reasonable doubt that he has no excuse for doing so, and that the burden is on her to show beyond a reasonable doubt that she has not committed adultery or done any other act which would justify him in procuring a divorce from her!
Such a proposition is not authorized by the statute, and cannot be •sustained in reason or by precedent, save in an obiter expression in S. v. Hopkins, 130 N. C., at p. 649, and some cases based thereon.
If the wife has done anything which will justify releasing the defendant from the marriage, the burden is on him to bring such action, and by preponderance of proof to satisfy the jury of the truth of his allegations, and even that will not release him from the obligation under this statute to support his innocent children, for in S. v. Kerby, 110 N. C., 558, it is held that “the failure by the father to provide for the support of the children is as much of a violation of this statute as the failure to provide support for the wife.” And while a divorce would release him from liability for her support, it would not relieve him of the moral and legal obligation to support his children.
The contention of the defendant that when notwithstanding he is proven, or admits (as in this case) that he has abandoned his wife and does not support her, that she is presumed beyond a reasonable doubt *801to be guilty of adultery or some other cause that will justify him in such conduct, and that tbe burden is upon ber to sbow to tbe contrary beyond a reasonable doubt, if it were well founded would simply relieve him of the expense and burden of proof in proving ber misconduct in an action to sever tbe marriage tie; and that if she fails to prove beyond a reasonable doubt that be is not entitled to a divorce be is discharged from such liability as fully as if there bad been a divorce granted. • This turns this proceeding practically into an action for divorce, but throws tbe burden of proof upon tbe wife.
Tbe whole case, therefore, turns upon an inadvertent construction placed upon tbe word “wilful” in S. v. Hopkins, 130 N. C., 649, which says that wilful means “without a cause to justify him in doing so.” This certainly cannot be sustained by anything in tbe statute, and is contrary to every definition of tbe word in all tbe dictionaries and is unjust, for it puts upon tbe woman tbe burden of disproving everything that tbe plaintiff is required to prove in bringing an action for divorce. A reference to that case will show that it was as tbe judge said: “A remarkable case,” but not in tbe sense that tbe writer of that opinion intended (which was by a divided Court), and was more a criticism of tbe trial judge than a decision of tbe case upon tbe merits as a matter of law. Tbe statement therein that tbe trial judge bad made tbe case “a trial of tbe wife for adultery” was tbe very thing which that opinion requires, for if followed it will make every trial for abandonment primarily a trial for divorce, tbe entire burden being thrown, contrary to law, upon tbe wife to disprove the charge of any and all conceivable misconduct.
Tbe word “wilful” is defined in “Webster’s International Dictionary” as “voluntary, intentional, purposely.” In almost tbe same words is tbe definition given by tbe “Century,” “Worcester,” “Standard,” “Funk & Wagnall,” and all tbe other dictionaries. It is tbe simple adjective of tbe plain Anglo Saxon word “will,” which all men understand, and which is not dependent upon whether an act is excusable or not. It is. “wilful” if done purposely and intentionally. On reference to 4 Words & Phrases, in tbe multitude of cases defining tbe word “willful” set out in pages 1293-1310, there is no such definition given to tbe word “wilful” as meaning “without cause to justify him in so doing,” as was held in S. v. Hopkins, supra, as to any case of abandonment, and only three or four cases use it as to other matters, and then only by reason of additional words which do not appear in our abandonment statute.
With that exception all tbe cases collected in Words & Phrases, supra, from all tbe states define tbe word “wilful” just as it is defined in all dictionaries — as an act done “intentionally,” “by design,” “with set purpose,” etc. They all bold that wilful means “intentionally and not *802accidentally.” And in some cases that it means “with deliberation or design, or knowingly,” and “not negligently”; that it means “purposely.”
The obiter expression in S. v. Hopkins, supra, imported into the word “wilful” as “being without cause,” a meaning that it has never borne in the courts or in the dictionaries, or in common parlance. This is in effect judicial legislation amending the statute to mean what the Legislature did not intend for it to mean. It creates a presumption unknown in the decisions of any court in any other state or country elsewhere, that when a man is charged with wilful failure to discharge his duty to support his wife and children, which he owes under the laws of God and man, beyond a reasonable doubt his wife has been guilty of adultery or some other grievous offense that would justify him in leaving her— which is equivalent to turning the trial into an action of divorce for adultery, or any other ground, with the burden upon the wife and not upon the man. And that even in this case, though the defendant has admitted he has done the act which the statute makes a misdemeanor, the judge must tell the jury that they cannot find the defendant guilty unless the wife has proven beyond a reasonable doubt that she has not committed adultery or any other act that would justify him in leaving her and the children without support.
There are cases in which the statute uses other words in addition to the word “wilful,” or sets up provisos which withdraw "the case from the operation of the statute or makes an exception or a defense. In those cases it has been held that the burden of the defense is upon the defendant, but it need only, be proven to the satisfaction of the jury, and not beyond a reasonable doubt, and that unless on the whole case the jury is satisfied beyond a reasonable doubt they should acquit.
Those precedents cannot in reason apply to this statute, which prescribes only two things to make the defendant guilty, and that is the wilful abandonment of his wife, without providing for her adequate support, and in this case both these facts were defiantly admitted by the defendant. There is no proviso nor exception nor defense in this statute.
As long as the marriage relation exists the burden is upon the defendant to support his wife. He cannot, without procuring a divorce, decide in his own behalf, without judge or jury, that he is entitled to a divorce and walk off without making any provision for the support of his wife and children, and then when charged with the abandonment, which he admits, coolly throw-upon his wife the burden of proving beyond a reasonable doubt that if he had sued for a divorce he would have been entitled to it. This is cruel injustice to wife and children, the most defenseless persons who ask justice at the hands of a court. It cannot be supported in reason. It has no foundation in the statute and derives no authority from the definition of the word “wilful” in any dictionary or in the courts of any other state than this.
*803In reference to the offense of abandonment and nonsupport, tbe law is thus summed up in 21 Cyc., 1614: “The burden is on the State to prove every element of the offense; while the defendant bears the burden of proving his affirmative defenses. Any evidence which tends to prove or to disprove these matters is therefore admissible. The State must prove its case beyond a reasonable doubt; but an affirmative defense may be established by a preponderance of the evidence.”
S. v. Schweitzer, 57 Conn., 543; S. c., 6 L. R. A., 128, is a case exactly in point. The Court said: “The defendant is charged with having unlawfully neglected and refused to support his wife. There was evidence tending to prove marriage, and the refusal to support was not denied. The burden of proof to show the unlawfulness of the neglect was upon the State as fully as to show the neglect itself. Ordinarily the conduct of married women is such that when any husband neglects or refuses to support his wife the law itself presumes such neglect to be unlawful. Having shown the marriage and the neglect to support, the attorney for the State could safely rest upon the presumption. The unlawfulness was deemed to be true prima facie. And when the defendant interposed a defense based upon such misconduct of his wife as made it lawful for him to refuse to support her, it was incumbent upon him to prove such misconduct as he set up, that is, her adultery, and to prove it, as before stated, by preponderance of evidence.”
In the same case the Court lays down the universal doctrine as follows: “All authorities agree that the burden is upon the State to make out its accusation in a criminal case beyond all reasonable doubt. It seems to be agreed with substantially the same unanimity that when a defendant desires to set up a distinct defense, such as is above mentioned, he must bring it to the attention of the court. In other words, he must prove it. A fact controverted before any tribunal can hardly be said to be proved at all unless there is more evidence in its support than there is against it — that is, the defense must be proven by preponderance of the evidence.” The charge in this case did not err in favor of the prosecution. The defendant cannot complain.
The court charged as follows: “There must both be an-abandonment of the wife without providing adequate support, and such abandonment and failure to so provide must both be wilful — and by wilful is meant without just cause or excuse — wrongful, and unjustifiable. In this case, among other evidence the defendant has offered evidence tending to show that the wife was unfaithful, and that she communicated an infectious disease to him, and there was evidence in contradiction. You are the sole judges of this, and of all the evidence in this case, and its credibility and what weight you will give it.” The jury found that the defense of the misconduct of the wife was untrue.
*804It is true that in the Connecticut statute the word “unlawfully” is used, but that distinction is against tbe defendant in this case, for in S. v. Massey, 97 N. C., 465, it is said: . “The term unlawfully implies that an act is done, or not done, as the law allows or requires, while the term wilfully is “done knowingly and of stubborn purpose.” In this case the act of abandonment and leaving the wife without provision was admitted by the defendant to have been done knowingly and of his stubborn purpose.
The defendant contends, however, that such burden to excuse himself does not devolve upon the defendant, but that upon all the evidence, if the jury are in doubt about it the defendant should be found not guilty, and relies upon the instance of an alibi, citing S. v. Josey, 64 N. C., 56, but the court put that defense of an alibi entirely upon the ground that it is incumbent upon the State to prove the identity of the defendant, and if upon the whole case and considering the evidence for the defendant there is a reasonable doubt whether the defendant was the person who committed the crime or not, he should be found not guilty.
Here there is no doubt as to the identity of the defendant or of his having left his wife without adequate support, and there is nothing in the statute in the nature of an exception which the State must disprove. When the defendant relies upon the alleged misconduct of his wife, the burden is upon him to prove the truth of - the defense by reason of which he would take himself from under the statute. As the judge told .the jury, it was not incumbent upon the defendant to prove such defense beyond a reasonable doubt, but merely to the satisfaction of the jury.
Where insanity is pleaded, the burden of proof is upon the defendant to establish such defense to the satisfaction of the jury. S. v. Terry, 173 N. C., 766; S. v. Hancock, 151 N. C., 699; S. v. Brandon, 53 N. C., 468; S. v. Starling, 51 N. C., 366.
The defendant also relies upon the proposition that on an indictment for “the slander of an innocent woman” the burden is upon the State to prove the innocence of the woman, but the gist of the indictment in that case rests upon the prosecutrix being a virtuous woman, and this must of course be proven as an essential ingredient of the offense.
If an indictment were allowable simply for the “slander of a woman,” then the truth of the charge might be pleaded in defense, and even then the burden would be upon the defendant to prove this to the satisfaction of the jury, but the statute authorizing an indictment only for the slander of “an innocent woman” makes her innocence an essential element of the crime, and the State undertakes that burden in instituting the proceeding.
The lawmaking power has not thought proper to make it indictable to abandon an “innocent” wife without adequate support. It would be a *805great hardship, unauthorized by statute, to require the State to prove that the wife was virtuous and free of fault, in every case where the husband has left her without adequate support. On the contrary, the offense guarded against by the statute is the abandonment by the husband, “wilfully,” that is, “purposely,” of his wife without adequate support for her and the children. Though the court has permitted him to exempt himself from the statute by showing that the wife has committed adultery, there is no such exception in the statute, and the court should permit him to avail himself of such defense only upon his alleging and proving it to the satisfaction of the jury. He cannot merely set up such defense and throw upon the State the burden of proving his wife is a virtuous woman.
The reasonable presumption is that if she is not virtuous he would avail himself of that fact by an action for divorce. It is for him to show any excuse for the intentional abandonment of his wife without adequate support.
To sustain the defendant’s contention the court must necessarily hold it to be a presumption of law that when a wife has been abandoned by a husband, beyond a reasonable doubt she has been guilty of adultery, since it holds that the burden is upon the State to prove beyond a reasonable doubt that she is not guilty thereof. There is nothing in this statute which requires this to be proven. There is nothing in the statute which authorizes it.
• The defendant relies upon S. v. Hopkins, 130 N. C., 647, in which case the learned judge was seeking to create the defense that if a wife has been guilty of adultery the husband should not be held liable for abandoning her. But in the absence of any such provision in the statute he endeavored in some way to annex this defense or excuse to the word “wilful,” with which it had no connection. The statute attached “wilful” to the abandonment in contradistinction to instances in which the husband had separated himself from his wife otherwise than wil-fully, as, for instance, where he might be incarcerated in an asylum for the insane. At most, if the proposition should be laid down that where the wife has been guilty of adultery it makes him excusable, the burden should be upon him to prove this as a defense. Even that cannot be sustained as to the children “which he may have gotten upon her,” for the wife’s misconduct will not justify his failure to provide support for them. S. v. Kerby, supra.
The rule as to the burden of proof to be deduced from the cases is this: “If the State’s evidence, if true, shows a complete crime of purposely and wilfully abandoning without providing adequate support for her, then the burden is upon the defendant to show matters and facts *806wbicb will excuse Ms wilfully leaving Ms wife without adequate support as the law requires.” S. v. Wilbourne, 87 N. C., 529, and S. v. Connor, 142 N. C., 700.
There is not only no requirement in the statute that the State must allege or prove the virtue of the wife, but there is not even a proviso withdrawing the husband from liability in case of the wife’s misconduct. It is for the defendant to allege and prove it as a defense. 'When the State has shown, and here the defendant has admitted it, that his wife has been abandoned by him without support if he may withdraw himself from criminal liability therefor, he should show, if he can, that she has not been a virtuous woman since her marriage. This is a matter of defense, not a part of the offense, and the burden of proof is upon the defendant. This has been the uniform ruling of this Court, when there has been a proviso (and there is none here) which withdraws the defendant, upon a certain state of facts, from liability under the broad, general terms of the statute creating the offense. S. v. Norman, 13 N. C., 222; S. v. Call, 121 N. C., 649; S. v. Welch, 129 N. C., 580. A very similar case to this was S. v. George, 93 N. C., 570, “for abduction of a child,” in which the Court held that the words of the proviso, “without the consent and against the will of the father,” was not a part of the description of the offense, and must be proven by the defendant.
In an indictment for embezzlement, O. S., 4268, “not being an apprentice or other person under 16 years of age,” must be charged, but the defendant must show that he is under 16, S. v. Blackley, 138 N. C., 622, and cases there cited. Under the former law, in prosecutions for retailing spirituous liquor, Rev., 3529, the bill must have charged that it was done “without license,” but the burden was upon the defendant to show that he had license, S. v. Emery, 98 N. C., 668; S. v. Smith, 117 N. C., 809; S. v. Holmes, 120 N. C., 576, and a long line of authorities.
In an indictment for fornication and adultery, C. S., 4343, the bill must allege, “not being married to each other,” but the burden is on the defendants to show that they are married as a matter of defense, S. v. McDuffie, 107 N. C., 888; S. v. Peeples, 108 N. C., 769; S. v. Cutshall, 109 N. C., 769.
In an indictment for entering upon land without license, C. S., 4305, though the bill must allege that the entry was “without license)” the burden is on the defendant to prove license, S. v. Glenn, 118 N. C., 1194.
The statute under which the defendant is indicted does not require allegation or proof that the wife was a virtuous woman, nor is there any proviso withdrawing the husband from liability if the wife has committed adultery. It is solely a matter of excuse, which he must allege and prove, for there is no presumption of her guilt. In other states the courts hold that even when the statute, unlike ours, makes the chastity *807of the woman a part of the description of the offense of abduction, there is a presumption in favor of female virtue, and hence, when the state has shown that the defendant has abducted or eloped with the wife of another man, the burden is on him to show that she was unchaste as a matter of defense. In the absence of proof, the courts elsewhere will not presume that a woman, who is shown to have been abducted, was unchaste. Bradshaw v. People, 153 Ill., 159; Slocumb v. People, 90 Ill., 281; Griffin v. State, 109 Tenn., 32; People v. Brewer, 27 N. C. Mich., 138; Andre v. State, 5 Iowa, 389; S. v. Higdon, 32 Iowa, 264.
The sole answer vouchsafed to all these settled precedents and principles is that the burden must be put upon the wife of proving beyond a reasonable doubt (before she can force her husband to support her and her children whom he admits he has left) that she has not been guilty of adultery or any other misconduct, because it is said in S. v. Hopkins, supra, that the word “wilful” meant not only what the statute said and the dictionaries hold, but it further means, in this particular matter, “without just cause,” and, therefore, the burden is upon her to disprove that beyond all reasonable doubt.
'When a precedent is so patently wrong and unjust to wives and children, and without warrant in any statute, or in any reason, it is creditable and proper to overrule it that it may no longer be a hindrance in executing the law and doing justice. It is true the Legislature has not interfered and told the Court that they had misconstrued the meaning of the word. That is a matter for the Court to correct, and it should do so now. The Legislature used the word “wilful” in the ordinary acceptation of the word, and as defined in all the dictionaries and in the decisions of all the courts, and there is nothing for the Legislature to amend. It used the word “wilful” and no other, and the Court should apply and use the settled meaning attached to that word. There is no proviso or defense which in the statute would withdraw the act of leaving the wife and children without Support from the penalty provided by the statute.
There is no superstitious sanctity attaching to a precedent. It is proper that precedents should not be lightly changed or without sufficient cause. But they should not be adhered to when ah opinion has clearly misconstrued a statute or is otherwise palpably erroneous.
This Court has never held that it was infallible, nor has any other Court. We have repeatedly overruled our own decisions, and a large pamphlet was issued some years ago containing a list of such cases, and a similar compilation now would be two or three times as large. The same is true of the U. S. Supreme Court, and all other courts. Men and nations may
“Rise on stepping stones of their dead selves To higher things.”
*808Courts can only maintain their authority by correcting their errors to accord with justice, and the advance and progress of each age. They should slough off that which is obsolete and correct whatever is erroneous or contrary to the enlightenment and sense of justice of the age, and to the spirit of new legislation.
While the courts are properly slow to change decisions unless justice requires it (as it so loudly does in this case), there are two classes of cases in which there should be close adherence to decisions:
1. When a decision has become a rule of property. In such case the correction should be left to legislation, which speaks prospectively.
2. As to matters of practice, which, being founded not on principle, but are more or less arbitrary rules. These should be left till there is a change either in the rules of the Court or by legislation. But this case does not involve a rule of property, nor is it merely a question of practice not involving a denial of justice or discrimination.
Even in such an important matter as "Hoke v. Henderson” 15 N. C., 1, which was decided by one of the ablest courts we ever had, and which was affirmed no less than 62 times, it was properly and justly overruled by this Court in Mial v. Ellington, 134 N. C., 136, notwithstanding it had been held for law for more than 70 years. The Court felt itself strong enough, and under a duty, to correct that erroneous decision. The courts do not claim infallibility. This Court not infrequently overrules the court below, and in turn, on writs of error our decisions have been overruled by the U. S. Supreme Court. That Court has corrected its own errors to the extent that it has overruled a large number of its own decisions. Some years ago it held invalid a statute of the State of New York, which protected working men from working more than 10 hours per day in a temperature of more than 120 degrees. Since then that Court has advanced and has held valid the “Adamson Law,” which protects working men in the open air from more than 8 hours labor a day. The Court advanced with the age. It has overruled many other important cases. And when it has not done so, the public have done so by constitutional amendments, notably, by the XI, the XVI, and other amendments.
In tliis State two of our most eminent judges held, in S. v. Black, 60 N. C., 262, and S. v. Rhodes, 61 N. C., 455, speaking for unanimous courts, that a husband had a right to thrash his wife, even without any provocation, with the restriction only that he could not permanently injure her. In less than ten years thereafter, in S. v. Oliver, 70 N. C., 60, while both those judges were still on the bench and counsel, as shown by his brief printed in the report of the case, relied upon those (then) recent decisions, Judge Settle, speaking for a unanimous Court, curtly said (with their approval), without deigning to argue the question: "We have advanced from that barbarism.”
*809In S. v. Edens, 95 N. C., 696 (as late as 1886), tbe Court reverted to tbe former ruling that a husband was not liable for beating bis wife “unless tbe battery is so great and excessive as to put life and limb in peril or permanent injury is inflicted,” and for tbis reason deduced tbe ruling that where tbe husband in that case bad married a young wife, who refused to live in tbe same bouse with bis mistress, but left him and thereupon be circulated tbe vilest slanders against her, without any foundation in fact, and held that be was not liable under tbe statute which made it indictable to “attempt to wantonly and maliciously injure and destroy tbe reputation of an innocent and virtuous woman,” on tbe ground that tbe slanderer was her husband, though tbis was an aggravation and not a defense. This barbarism was also overruled, S. v. Fulton, 149 N. C., 485.
In S. v. Hopkins, supra, tbe decision is even more barbarous, if possible, bolding, without authority in any statute or in reason, and by a dictum, originating in that case (which gave to tbe word “wilful” a meaning which it does not have in tbe dictionaries, or in any other Court) that a wife, asking for legal support, is presumed to be guilty of adultery or other misconduct, and that “beyond a reasonable doubt” she must prove that she is not. Surely it is time that we bad advanced “from that barbarism” also, and should place ourselves in line with all tbe other courts, which bold that there is no presumption against tbe virtue of women, just as there is none against tbe honesty of men, and that be who asserts tbe contrary must prove it, and when it is set up as a defense it must be shown by tbe defendant and at least to tbe satisfaction of tbe jury.
No presumption that a wife has committed adultery, and that she must disprove tbis beyond a reasonable doubt, can arise merely because she asks that tbe courts make her husband give her and her children tbe support which tbe law requires him to give, and when be admits (as in this case), or is proven, to have left them without such support.