concurring: C. S., 4447, provides:. “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” ; and C. S., 4449, provides: "Order of support from husband's property or earnings. Upon any conviction for abandonment, any judge or any recorder having jurisdiction thereof may, in his discretion, make such order as in his judgment will best provide for the support, as far as may be necessary, of the deserted wife or children, or both, from the property or labor of the defendant.” In this case the evidence was uncontradicted that the defendant “abandoned, refused, and failed to support in any way his children, Josephine Bell, aged 4 years; Mabel Bell, aged 6 years; Ellen Bell, aged 8 years; and Mary Baxter Bell, aged 10 years, and has not contributed anything to their support since said date” (July, 1920). This was so expressed in the warrant which was sued out 30 December, 1921, and in the indictment, and the jury found the charge to be true.
The warrant sets out that on 30 December, 1921, Thomas L. Jones, justice of the peace of Yance County, issued his warrant as follows: “State v. J. E. C. Bell. Mabel K. Bell, being duly sworn, complains and says that at and in said county of Yance, in Henderson Township, on or about .... July, 1920, J. E. O. Bell, affiant’s divorced husband, did unlawfully, willfully, and feloniously abandon, refuse, and fail to support in any way his children, Mary Baxter Bell, age 10 years; Ellen Bell, age 8 years; Mabel Bell, age 6 years, and Josephine Bell, age 4 years; and has not contributed anything to their said support since said date, contrary to the form of statute and against the peace and dignity of the State.”
On 5 January, 1922, the defendant was arrested upon that warrant and was bound over to the Superior Court of Yance on 6 March, 1922. The indictment then found recites that on .... July, 1920, the defendant, J. E. C. Bell, “Unlawfully and willfully did abandon his children, viz.: Mary Baxter Bell, Ellen Bell, Mabel Bell, and Josephine Bell, without providing adequate support for said children, against the form of the statute in such case made and provided, and against the peace and dignity of the State.” It is true there was a second count in the bill that the defendant had abandoned his wife without providing adequate support for such wife and children, but he was not tried or convicted on this count, and it appears from the warrant, and from the first count of the indictment, on which he was tried, that the defendant’s wife had been divorced from him at the time the warrant and indictment were found.
The judge, in accordance with the provisions of section 4449, adjudged that “the defendant pay to the clerk of Yance Superior Court *711tbe sum of $50 per month, beginning 1 April, 1922, until the further order of the court, to be applied to the maintenance of his infant children,” and the costs.
It does not appear that the defendant was without means, and presumably he was not, for it appears in the record that he has been sheriff of his county, but if he had been, it would have been (C. S., 4449) in the discretion of the judge to make such order for the support of the children “from the property or labor of the defendant,” as it was imperatively the duty of the defendant to providé for them.
This statute does not prohibit this proceeding in favor of the children unless his wife has been included, especially is this so when he has no wife. The language of the statute is, “without providing adequate support for the wife and the children.” When such proceedings have been taken out for nonsupport of a wife it has never been thought a defense that she had no children. Nor can it be reasonably construed that this proceeding cannot compel the defendant to aid in the support of his children because he has no wife. The rule should work both ways. The object is to enforce adequate support for the wife and children, and if there is no wife, the proceeding none the less will lie in favor of the children, and if there are no children, it still lies in favor of the wife. It is an immaterial circumstance whether the defendant has lost his wife by death, or by divorce, as in this ease. The object of the statute is to secure support for the wife and children, or for either. The abandonment is only an aggravation of the offense. Any other construction would make the statute a nullity except in cases where the defendant has both wife and children.
In S. v. Kerby, 110 N. C., 558, it was held that it was intended to procure the support of the children as well as for the wife, and that the offense was complete when there was a failure to support the children only, though in that case the defendant had a wife at the time the offense was committed.
It was contended for the defendant that the offense of leaving these children without adequate support was barred by the statute of limitations; as if a statute could run against these four helpless little beings, for whose protection, with all others in like condition, the statute was provided. It is true it has been held in some decisions that abandonment was the act to be punished, and, therefore,. the statute began to run from that time, and the defendant was protected by the lapse of two years. If there was any validity in that defense as to the wife, who was presumably of age, and whose acquiescence for two years might be a waiver, this certainly could not avail as against these four little girls from 2 to 8 years of age when first abandoned. The statute could not run against them.
*712But with, all respect to the precedent, S. v. Davis, 79 N. C., 603, that held that the statute rims from the abandonment, it would seem that a reasonable construction of the intent of the Legislature, as evidenced by C. S., 4449, was not to punish the act of abandonment, for which no punishment is prescribed, but the intent was a judgment requiring the husband, or father, as the case might be, to furnish adequate support out of his estate, if he had any, and if not, by his labor, and that where there has been a failure to support, as in this case, within two years prior to the institution of this proceeding, the action is not barred, certainly not against minor children. They have had no day in court, and have had no opportunity.
In S. v. Davis, supra, it was held that this was not a continuing offense. But that was a case where the abandonment was of the wife only who might be presumed possibly to have waived prosecution by delay for two years; but even in that case the court was quick to say that if the husband subsequently made a promise within the two years to support the wife, the failure to perform such promise constituted a fresh abandonment and sustained the indictment found within two years after such failure. If that ease is a precedent for the first proposition, it is equally so for the second.
In S. v. Hannon, 168 N. C., 216, where the husband had abandoned his wife something over three years before the bill found, but within two years he gave her $5 for her support and promised to return and to furnish a house for her, which he did not do, it was held sufficient breach of his marital duty to support an indictment upon the second promise. The Court said that “the promise of renewal of association on the part of the husband and payment of $5 towards her support would amount to a renewal of the obligation, and on a subsequent failure within the two years an indictment would lie,” citing with approval S. v. Davis, 79 N. C., 603. In S. v. Beam, 181 N. C., 597, where there was a second abandonment, the Court held that the husband leaving the wife the second time without furnishing any support within two years was not barred by the statute of limitations.
If the statute of limitations could run against these little children (for the mother is not a party to this proceeding, and, indeed, the defendant had no wife when the warrant was sworn out or the indictment found), still, even in that view, this defendant cannot avail himself of the bar of the statute, for in this case the abandonment of the wife took place about 1 June, 1919, but afterwards, and within two years of the swearing out of the warrant in this case, on 30 December, 1921, the defendant executed a deed on 1 December, 1920, to R. S. McCoin, as trustee, jointly with his divorced wife, in which they both conveyed their interest in certain property to the trustee with authority to manage *713tbe same, beep it in good condition, and out of tbe proceeds of said trust fund should pay $200 a month for the support of the divorced wife and the necessary expenses of the children and their schooling. This fund proved inadequate, and the children have been left without any support whatever.
The trustee, Mr. McCoin, also testified that in the fall of 1921, after he had been made trustee and found the fund insufficient, he met the defendant on the street and asked him to contribute something to the expenses of one of the children in the hospital. The defendant said he would do what he could for his children, adding that he was going to Raleigh and would see about a $200 over-payment which he had made in settling as sheriff his taxes with the State; that he would send that, and also would send him a list of parties whose taxes he had paid but had not collected, and that the trustee (McCoin) might collect that for the children. He also, within the two years, on Christmas, 1920, sent the children a pony for riding and several small presents.
The deed in trust, the promise to McCoin, trustee, and the sending of the pony and other articles were all done within two years prior to the beginning of this action and his subsequent total abandonment of his children without any support constitutes an offense, and in any view prevents the bar of the statute of limitations. S. v. Davis, supra; S. v. Harmon, supra.
His legal and moral duty was a sufficient consideration for the promise he made, within the two years, to McCoin to send check and other aid for the support of his little girls.
This Court held, in Sanders v. Sanders, 167 N. C., 319 : “There can be no controversy that the father is under the legal as well as a moral duty to support his infant children. Walker v. Crowder, 37 N. C., 487,” and whether they have property or not. Haglar v. McCombs, 66 N. C., 345.
The defendant did not put on any evidence to deny that he had left his four little girls, aged from 4 to 10, without any support whatever, neither for food, clothing, shelter, or schooling. But his counsel insists that he is protected from liability because when these children were still younger, i. e., 2 to 8 years of age, they had allowed two years to elapse without talcing any steps to force him to provide for them. I do not think that this can be the law in North Carolina.
In 20 R. C. L., 622, sec. 30, it is said: “Correlative to the father’s right to the custody, control, and earnings of his minor child is his duty to support such child. This duty is recognized and discharged even by the higher orders of the animal world, and it would seem to be prescribed as to the human father by the most elementary principles of civilization as well as of law. It was held in some early American *714eases, supported by eminent English authority, that There is no legal obligation on a parent to maintain his child,’ unless by force of some statute. But this doctrine, admitted to seem startling and opposed to the innate sense of justice by the court which gave to it its first American support, has been repudiated by the great majority of American courts”; and here follows a long list of decisions, the only case cited to the contrary being an early New Hampshire case.
The law is thus stated, 8 R. C. L., 307, sec. 332: “The crime of nonsupport is a continuing one, as the duty to support is continuing, and the breach of it may be stated as having occurred at the moment of desertion or at any time during the continuance of the willful neglect to support.” Certainly where the failure to support is only as to the children, who .at its commencement were from 2 to 8 years of age, and the husband, as in this case, renewed his promise to support them within the two years and has failed to comply, the statute of limitations cannot be a bar as to these children.
The verdict of the jury and the judgment of the court that the defendant pay $50 per month for the support of his four children was just and righteous altogether, and in accordance with the language as well as the clear intent of our statute.
Indeed, the single case that holds that neglect to support the children is “not a continuing duty,” and hence acquiescence for 2 years by them is a-bar to any liability, should be overruled. In its very nature support is a “continuing duty.” 8 R. C. L., 307. It is violated the very first day that the father fails to discharge it, and each succeeding day thereafter is an aggravation and not a defense. Under our rule as to the statute of limitations in misdemeanors, the defendant cannot be held guilty for acts of abandonment and nonsupport committed more than two years before proceedings began, but for those committed within two years. But if this is to be reversed, and by calling it “not a continuing offense” (for which there is no intimation in the statute), still the promise to McCoin and the gifts to the children, made within two years before this action was begun, deprives the defendant of relying upon the defense that he had also been guilty before the two years.