dissenting: I should be content with the judgment of the majority in this case if I did not feel that the present decision is vio-lative of the rule of strict construction, as it relates to the interpretation of criminal statutes, and further, that .it is in conflict with a number of our previous decisions. The duties of a husband are quite different from those of a father, and it would seem that a penal statute directed against the one ought not to be held to include the other, unless the *715Legislature so declare. A man may be a husband and yet not a father; or, like J. E. C. Bell, he may be a father and not now a husband.
But it is stated in the opinion of the Court that the statute should be construed as if it contained other words than those incorporated therein, and then the observation is made that the conclusion reached is the rational and reasonable one. Maybe so; but to my mind this conviction cannot be sustained without giving a strained construction to a criminal statute, and further, by adding additional words thereto, by way of “judicial legislation.” Both of these methods, however, seem to have been employed, in the instant case, in a manner and fashion satisfactory to a majority of the Court.
The present prosecution is based upon an indictment charging the defendant with willfully abandoning his wife without providing adequately for her support, and for the support of their four minor children, as condemned by C. S., 4447. There is also a count in the bill charging the defendant with a violation of C. S., 4450, in that, while living with his wife, he willfully neglected to provide adequate support for the children which he had begotten upon her. But as the evidence was not sufficient to support this latter charge, it need not be considered. S. v. Kerby, 110 N. C., 558. He was convicted under the first count.
In addition to the above, there was a third count in the bill to the effect that in July, 1920, the defendant “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 cases made and provided, and against the peace and dignity of the State.” With respect to this charge, I am unable to find any statute in North Carolina making the alleged offense criminal, unless C. S., 4447, was intended to do so. The language of this statute is 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.” Here, it will be observed, two things are necessary to be shown, and they must concur in order to render the husband liable to indictment, to wit: (1) a willful abandonment of the wife; and (2) a failure to provide “adequate support for such wife, and the children which he may have begotten upon her.” S. v. Toney, 162 N. C., 635. Of course, the offense may be committed where there are no children, but it would seem to be otherwise where there is no wife. The abandonment of the wife is the act of abandonment here condemned, and not that of the children. The statute provides that the charge may be preferred against any offending husband, not father. “If any husband shall willfully abandon his wife,” etc., is the language used.
*716But it is said that a contrary meaning was intended, as appears from the caption of this section, which is as follows: “Abandonment of family by husband.” Where the meaning of a statute is doubtful, its title may be called in aid of construction (Freight Discrimination Cases, 95 N. C., 434) ; but the caption cannot control when the meaning of the text is clear. In re Chisholm’s Will, 176 N. C., 211, and eases there cited. Especially is this true where the headings of sections have been prepared by compilers and not by the Legislature itself. Cram v. Cram, 116 N. C., 288. Moreover, it does not appear that the instant caption imports a meaning contrary to the body of the text. The abandonment mentioned is to be by the “husband”; and a husband is a man who has a wife.
It was not an indictable offense at common law for a father to abandon his children, nor was it a crime for a husband to desert his wife. The basis of the entire prosecution we are now considering is purely statutory. 13 R. 0. L., 1191. It was not known or recognized at the common law, and hence we must look to the enactments of the Legislature to determine the lawfulness or unlawfulness of the offense charged. 21 Cyc., 1611. A careful reading of the above section convinces me that this third count is not included within its terms. Furthermore, it is quite evident that such was not the purpose and intent of the lawmaking body. The provisions of 0. S., 4450, would seem to indicate a different policy, or a contrary legislative intent. This section reads as follows: “If any husband, while living with his wife, shall willfully neglect to provide adequate support for such wife, or the children which he has begotten upon her, he shall be guilty of a misdemeanor.”
It will be noted that, in one' section, the willful abandonment of the wife without providing adequate support for such wife, and the children begotten upon her, is the offense condemned; while in the other, the willful neglect, while living with the wife, to provide adequate support for such wife or the children begotten upon her is made a misdemeanor. The two statutes are quite different, and, on a proper perusal, I think it is apparent that both were drawn with studied care and precision. Note, also, that C. S., 4449, by express terms, has no application unless and until there has been a conviction under the prior statute, and the same may be said of Public Laws 1921, ch. 103.
It may be stated, however, that the defendant was not prosecuted on this third count in the court below. The case was tried on another theory. The State offered evidence tending to show that in June, 1919, the defendant abandoned his wife without providing adequate support for her and their four minor children. The defendant offered no evidence, but contented himself with the plea that the prosecution was barred by the statute of limitations. This was the only question con*717sidered on tbe trial; and, of course, if tbe defendant bad been tried on. tbe third count in tbe bill, and it were valid, tbe plea of tbe statute of limitations could bave availed bim nothing under tbe facts of tbe instant case.
Tbe offense charged under C. S., 4447, and of which tbe defendant was convicted, is a misdemeanor. It occurred on or about 1 June, 1919, according to tbe State’s evidence. Tbe defendant was arrested 5 January, 1922, and tried at tbe March Term, 1922, of Yance Superior Court. Tbe only question presented for our consideration on this appeal is tbe validity of tbe defendant’s plea of tbe two-year statute of limitations, 0. S., 4512.
As early as 1878, in the case of S. v. Davis, 79 N. C., 603, tbe following was declared to be tbe law of this jurisdiction: “It is tbe act of abandonment and failure to support that constitute tbe offense. Tbe first offense was in 1873, and is barred by tbe statute of limitations. It is not a continuing offense by reason of tbe continued separation; so that tbe question is whether there was a second offense in tbe latter part of tbe year 1877.” To like effect were tbe decisions in S. v. Dunston, 78 N. C., 420, and S. v. Deaton, 65 N. C., 496. And such was recognized to be the law, as it obtains with us, in a well considered opinion by Associate Justice Walker in tbe recent case of S. v. Beam, 181 N. C., 597.
In order to repel tbe plea of tbe statute of limitations, tbe State offered evidence tending to show: (1) that tbe defendant sent bis children a pony for a Christmas present in December, 1920; (2) that tbe following Christmas, 1921, be sent bis oldest girl a book, two of bis other children a basket, and tbe smallest one a doll; (3) that on 1 December, 1920, tbe prosecutrix, Mrs. Bell, who bad inherited some property from her father and mother, executed a deed of trust conveying her said inheritance to E. S. McCoin, trustee, for tbe use and benefit of herself and her four minor children, in which said deed of trust tbe defendant joined on 9 December, 1920, tbe same having been sent to bim for bis signature in Beaufort County, N. C., where be then resided; (4) that in tbe fall of 1921 tbe defendant promised E. S. McCoin, who was then acting as trustee of Mrs. Bell’s property, to send bim a check of $200 to be used in paying tbe hospital bill of one of bis children. This be never did; and at tbe time of bis conversation and promise to McCoin, be expressly stated that “be wouldn’t contribute anything to Mabel (Mrs. Bell), but be wanted to do what be could for tbe children.”
It is contended by tbe State that tbe foregoing acts of tbe defendant, committed, as they were, within two years of tbe finding of tbe bill of indictment, take tbe case from under tbe bar of tbe statute, and, for this position, the decision in S. v. Davis, supra, is cited as an authority. It *718will be noted, however, that in Davis’s case, supra, there was a promise to provide for the wife’s support, which amounted to a recognition of the marital obligations, and this promise was actually carried out for a period of two weeks. A refusal then on the part of the defendant to continue to support his wife and child was held to be a second offense, or a fresh act of abandonment and failure to support within the meaning of the statute.
But in the case at bar Mrs. Bell had obtained an absolute divorce from the defendant in the spring of 1921, long before the defendant’s conversation with McCoin, and before his Christmas gift to the children in 1921. Hence, the only acts done by the defendant within the period of the statute, and while the bonds of matrimony were still subsisting between the prosecutrix and himself, were the giving of the pony as a Christmas present to the children in 1920, and the consenting to the placing of his wife’s property in trust by joining in the deed which had been sent to him for his signature. This was not sufficient to take the case out of the statute and start it to running anew. Neither of these acts, nor the two combined, under the circumstances of the instant case, could hardly be said to partake of the substance of adequate support. The former was intended only as an act of kindness, being a Christmas gift to the children, and the latter was a mere legal formality. Furthermore, two elements are necessary to constitute the offense here charged, namely, willful abandonment of the wife and failure to provide adequate support. Such has been the direct holding in at least three cases: S. v. Smith, 164 N. C., 479; S. v. Toney, 162 N. C., 635, and S. v. May, 132 N. C., 1021.
The State also relies upon the decision in S. v. Hannon, 168 N. C., 215. But in that case there was not only a promise made to the wife to provide support within the statutory period, but an actual resumption of the marital relations; and what is said in an opinion should always be considered in connection with the facts of the case in which it is delivered. “Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered.” Marshall, C. J., in U. S. v. Burr, 4 Cr., 470.
The civil liability or obligation devolving upon the defendant to support his minor children is not before us for consideration. Sanders v. Sanders, 167 N. C., 319. Nor are we called upon to say whether such conduct as here disclosed should be made criminal. We can only declare the law as we find it, and the courts are not at liberty to extend the terms of a penal statute, by implication or otherwise, to include eases not clearly within its meaning. In other words, the rule of strict construction prevails. S. v. Falkner, 182 N. C., 795. There is nothing on the present record to show what order, if any, was made with respect *719to tbe care and custody of tbe defendant’s minor children in tbe divorce proceedings, brought by bis wife in tbe spring of 1921; but from what is now apparent it would seem that tbe civil right of these children to call upon tbe defendant for support is still subsisting, and certainly it is not impaired by tbe lapse of time. Sanders v. Sanders, supra. They are evidently living with their mother, but it does not appear that she has been awarded their custody by order of court, or otherwise.
The unfortunate and pathetic circumstances here disclosed, especially in the absence of any exculpating testimony, may have a strong tendency to excite sympathy for the minor children, on the one hand, and to elicit criticism of the defendant on the other, but it behooves us to bear in mind the fact that neither partisan advocacy nor sharp invective should find a place, or even support, in a calm, judicial opinion; and further, it should be remembered that we are engaged in “running the base line” here, with square and plumb, or needle and compass, as it were, and hence it is not permissible for us to “stretch” the criminal law, by equitable construction or otherwise, to include cases not expressly covered by the statute. "We must hew to the line and let the chips fall wherever they may. And though we may think the law ought to be otherwise, this should not blind our judgment to what it really is. The duty of legislation rests with another department of the Government. It is ours only to declare the law, not to make it. Moore v. Jones, 76 N. C., 187. The people of North Carolina have ordained in their Constitution (Art. I, sec. 8) that the legislative, executive, and supreme judicial powers of the Government should be and ought to remain forever separate and distinct from each other. Such is their expressed will, and from the earliest period in our history they have endeavored with sedulous care to guard this great principle of the separation of the powers. In this country those who make the laws determine their expediency and wisdom, but they do not administer them. The chief magistrate who executes them is not allowed to judge them. To another tribunal is given the authority to pass upon their validity and constitutionality, “to the end that it be a government of laws and not of men.” From this unique political division results our elaborate system of checks and balances — a complication and refinement which repudiates all hereditary tendencies and makes the law supreme. In short, it is one of the distinct American contributions to the science of government; and the judiciary — the department of trial and judgment — of all others, without hesitation or turning, should hold fast to the basic principle upon which this Government is founded. The courts are vested with judicial powers only, and it is no part of their function to change or to amend the criminal statutes enacted by the Legislature. On the other hand, the universal rule is that such statutes are to be construed strictly.
*720In recognition and support of this well established formula, there must be some uniformity in judicial decisions, when dealing with a given subject, or else, the law itself, the very chart by which we are sailing, will become as unstable and uncertain as the shifting sands of the sea — a condition which, all must agree, would be intolerable and destructive of the only enduring foundation upon which the present and future hope of this Government of laws and not of men must be builded and sustained.
The identical law which this Court has heretofore declared to be applicable in such cases is now invoked by the defendant for his protection. He relies upon a statute of repose and the stability of our decisions. With assured confidence, he stands at the bar and asks that the same law which is administered to others shall be administered to him. The righteousness of this position can hardly be denied by a great State which has vouchsafed to every person within its borders even-handed justice and the equal protection of the laws.
It is not every abandonment that is made criminal by the statute as enacted by the Legislature. In the first place, the act of abandonment must be willful, or without just cause, excuse, or justification, which is more than a mere separation (S. v. Falkner, 182 N. C., 793); and this must be accompanied by a failure to provide adequate support for such abandoned wife and the children which the defendant may have begotten upon her, whether born in lawful wedlock or not. But this would not include the children of any other marriage or cohabitation. The children are referred to only in connection with the adequacy of support for the abandoned wife, and then only those which the defendant may have begotten upon her. But it is stated in the opinion of the Court that the statute should be construed as if it were framed in the following language: “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 adeqúate support for such children, he shall be guilty of a misdemeanor.” Here, it will be observed, in the revised statement of the statute, as rewritten by the Court, the words “which he may have begotten upon her” are meaningless unless they refer to the children which the defendant may have begotten upon his abandoned wife. Manifestly, if there be no abandoned wife, there can be no such children. On the other hand, if these words, as here used by the Court, are to be interpreted as meaning legitimate children' — and they could be construed to mean illegitimate children just as well, for “her,” a pronoun, without an antecedent noun to represent, would be a prodigal term — then the act of the Legislature has *721been entirely changed. The courts are treading on dangerous ground when they begin the practice of rewriting criminal statutes.
If this defendant were indicted and stood convicted of a capital felony, it could hardly be conceived that the present interpretation of the statute would be permitted to stand for a moment, and yet the same rule of strict construction which is to be observed in interpreting statutes dealing with the more serious offenses applies equally to those having to do with crimes of a lesser magnitude. It were better that the Legislature should be given an opportunity to declare the law more explicitly than that we should depart from the settled rule in matters of this kind, which has been approved by the wisdom of the ages.
Let there be no misunderstanding. I am not defending or offering any excuse for the conduct of the defendant here. It may have been highly reprehensible, and doubtless it was, but my concern is with a far more serious question, and one which involves the policy of the Court in dealing with the rights and liberties of our citizens. If we are to amend this statute, where is such practice to end or to be stopped! I can find no authority or license for its use in this instance.
My position is simply this: The only wife mentioned in the statute is the wife which the defendant husband has willfully abandoned. The only children mentioned in the statute are those which the defendant husband may have begotten upon his abandoned wife, and none other. Clearly, if no wife has been abandoned, there can be no children of “such wife.” Furthermore, the children are mentioned only in connection with the adequacy of support for the abandoned wife. This interpretation is supported and fortified by the language used in C. S., 4450, a cognate statute. In reply to this, I am met with the statement that the law ought to be otherwise. Possibly so, but that is a matter for the Legislature. With all due deference, I think the punitory judgment pronounced herein should be withheld and the parties allowed to proceed in a civil action, as already suggested, if so advised.
Walker, J., concurs in dissent.