State v. Bell

Adams, J.

Tbe statutes making abandonment a misdemeanor were • enacted in 1869. Public Laws 1868-69, cb. 209. Tbe first section of tbe original act is now section 4447 of tbe Consolidated Statutes, tbe. second is section 4450, and tbe third, section 4448. Section 4449 was enacted in 1917. Tbe State contends that tbe defendant is guilty of a breach of tbe section first named above (4447), and concedes that if be is not, be should be discharged. Tbe prosecution further admits that tbe defendant cannot be convicted if bis guilt is legally dependent on bis abandonment of bis wife, because be abandoned her in June, 1919, more than two years before tbe warrant was issued or tbe bill of indictment was returned, and has not renewed as to her bis marital obligation. Indeed, at tbe March Term, 1921, of tbe Superior Court, she obtained a decree dissolving tbe bonds of matrimony. Tbe appeal, therefore, presents these two questions:

1. Is a former husband, from whom bis wife (now living) has procured an absolute divorce, subject to prosecution under section 4447 for tbe subsequent abandonment of their children without providing such children an adequate support?

2. If so, is tbe prosecution barred by tbe statute of limitations?

With respect to tbe first interrogatory, tbe defendant’s contention, concisely stated, is this: Tbe statute (section 4447) contemplates tbe husband’s abandonment of tbe wife -without providing adequate support for her and their children, if any, and excludes tbe interpretation that tbe word “abandonment” applies equally to tbe children. In other words, tbe defendant contends that be is not guilty of a breach of this statute, even if it be granted that be willfully abandoned tbe children begotten of bis wife without providing for their adequate support. There is, in our opinion, no sound reason for this limited construction. Since conditions growing out of tbe domestic relation exact of tbe wife tbe more immediate association, care, nurture, and tuition of tbe child, it has popularly been conceived that tbe abandonment of tbe wife involves tbe abandonment of tbe children. Doubtless tbe decisions are in part responsible for this conception — for in all tbe cases in which tbe husband was convicted of abandonment without providing support for tbe wife and tbe child they were ostensibly living together; and, in fact, be abandoned bis child when be abandoned bis wife. Not so here. Tbe husband and tbe wife are divorced.

Tbe jury returned a general verdict of guilty. It has repeatedly been held that where there are several counts in an indictment, and tbe evidence applies to one count only, a general verdict will be presumed to have been rendered on tbe count to which tbe evidence applies. S. v. Long, 52 N. C., 24; S. v. May, 132 N. C., 1021; S. v. Gregory, 153 N. C., 646; S. v. Strange, 183 N. C., 775. From his Honor’s instruction. to tbe jury, and from the judgment, which makes provision for the children only, we may legitimately infer that the prosecution was confined to the count which charges the defendant with the willful abandonment of the children, or, at any rate, that his Honor concluded that the willful abandonment of the children without providing adequate support for them — regardless of the legal status of the wife — was a breach of the statute. The question first stated above, then, may be reduced to this: Does the first count in the indictment charge a criminal offense? The 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.”

We have decided, in several cases in which the husband was indicted for abandonment and failure to provide support, that both these elements must be established, and.we adhere to these precedents. But the former decisions of the Court do not determine the controversy, for the question in this appeal has not heretofore been presented for consideration. "We must resort, therefore, to the established principles of statutory construction. Scrupulously observing the constitutional separation of the legislative and the supreme judicial powers of the government, we adhere to the fundamental principle that it is the duty of the Court, not to make the law, but to expound it, and to that end to ascertain and give effect to the intention of the Legislature, or if the legislative intent cannot be discovered, to give the statute such reasonable construction as may be consistent with the general principles of law. This is reasonable, for the courts impute to the Legislature, as a coordinate branch of the government, knowledge of the settled principles and maxims of statutory construction, and assume that statutes are enacted with a view to their interpretation according to such maxims and principles as an effective means of assuring certainty and uniformity in the administration of the law. In our endeavor to ascertain the purpose of the statute, we should also have due regard to the rule that the spirit and reason of the law shall prevail over its letter, especially where a literal construction would work an obvious injustice. Herring v. Dixon, 122 N. C., 425; Wilson v. Markley, 133 N. C., 616; Fortune v. Comrs., 140 N. C., 322; McLeod v. Comrs., 148 N. C., 79; 25 R. C. L., 955 et seq.; 36 Cyc., 1102 et seq.

What, then, was the intention of the Legislature in enacting this statute? The obvious purpose was to punish the husband for a willful failure to perform certain duties enjoined by the marriage contract — • the duty to live with and to provide support for his wife and their children. Accordingly, his willful abandonment of his children without providing for them adequate support is no less a misdemeanor than his willful abandonment of Ms wife without providing adequate support for her. If there be no children, his willful desertion and neglect of his wife is punishable under the statute. S. v. Toney, 162 N. C., 635. If there be children and no wife — if she be dead or divorced — his willful abandonment of them without providing for their support is none the less criminal. This, we think, is the rational interpretation. It is in accord not only with the spirit and reason of the law, but with the phraseology and punctuation. Punctuation, we admit, is not an infallible standard of construction; indeed, some courts have held that it should be disregarded; but we apprehend that their conclusion was based upon the old English doctrine which was announced as a necessary consequence of the custom of enacting and enrolling laws with no punctuation whatever. But this is not the prevailing doctrine. In Taylor v. Town, 10 A. & E. Anno. Cas., 1082, it is said: “There is no reason why punctuation, which is intended to and does assist in making clear and plain all things else in the English language, should be rejected in the case of the interpretation of statutes. Gessante ratione legis cessat ipsa lex.” Ewing v. Burnet, 11 Pet. (U. S.), 41; Albright v. Payne, 43 Ohio St., 8; Savings Ins. v. Newark, 63 N. J. L., 547; Comrs. v. Ellwood, 193 Ill., 304; Tyrrell v. New York, 159 N. Y., 239. Regard should be given to the difference, which, no doubt, was intentional, between the punctuation in the first and the punctuation in the second section of the original act. Section 2 (C. S., 4450) was as follows: “That if any husband, while living with his wife, shall willfully neglect to provide adequate support for such wife and the child or children which he has begotten upon her, he shall be guilty of a misdemeanor.” It is important to-note the absence of a comma after the words “for such wife.” In consequence, the section was deemed to denounce only one offense, namely, the willful neglect of the wife and the child. Section 1 (C. S., 4447) of the original act provides: “That if any husband shall willfully abandon his wife without providing adequate support for such wife, and the child and children which he has begotten upon her (such wife), he shall be deemed guilty of a misdemeanor.” Note the comma after the words “wife” and “her.” We regard it manifest that the first section of the original act (4447) was intended to create two offenses (willful abandonment of the wife and failure to support her, and willful abandonment of their’ children and failure to support them), and the second (4450) was subsequently amended and coordinated with the former by substituting “or” for “and,” and thereby likewise creating two offenses. The Code, see. 972. The words “while living with his wife” are significant chiefly as repelling the notion of a complete or partial severance of the marriage relation, and for the reason before stated, imply that the derelict husband is living also with.- Ms children. So the two sections, construed together, are intended to punish the husband for willful failure to support the wife or children, if living with them, and for his willful abandonment of the wife or children and failure to provide adequate support.

The punctuation in section '4447 has been preserved in Battle’s Ee-visal, in The Code, the Eevisal of 1905, and in the Consolidated Statutes. If the phrase relating to the wife and children had not been set apart by commas as a separate and distinct provision, this section, like section two, might reasonably have been construed as creating one offense, and' would have required an amendment -similar to that of section two. It is hardly conceivable that the Legislature intended by the amendment to create two offenses in the second section if in the first there is only one — to subject the husband to prosecution if, while living with his wife, he willfully neglects to provide for their children, and to declare him exempt if he willfully abandons them and neglects to provide for their support. In our opinion, if the rule of strict construction be applied, the statute means just this: 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 adequate support for such children, he shall be guilty of a misdemeanor. This construction harmonizes the two statutes and credits the Legislature with the righteous intention of preserving, so far as practicable, the unity of the domestic relation.

True, the caption of the act of 1868-69 is “An act to protect married women from the willful abandonment or neglect of their husbands”; but to the suggestion that the caption may be invoked in explanation of the language of the statute, there is' in this case more than one answer. In the first place, the language of the title is not permitted to control expressions in -the body of a statute that conflict with it. Blue v. McDuffie, 44 N. C., 132; Randall v. R. R., 104 N. C., 413; S. c., 107 N. C., 750; S. v. Patterson, 134 N. C., 614, In the next place, if it be granted that the title of the original act should be considered, why is it not equally clear that the title of the reenacted statute should be considered? "We readily admit that the compiler’s preparation of a heading for a statute in no way affects the construction of the language “when its meaning is perfectly obvious.” Cram v. Cram, 116 N. C., 293. But where in the course of half a century a statute has been reenacted time after time, and the first title is changed and the reenacted statute thereafter bears substantially the amended caption throughout, we are not at liberty to assume that such caption indicates merely the compiler’s construction and excludes that of the Legislature. The first reenactment was in 1874 (Battle’s Rev., cb. 32, sec. 119, and cb. 121, sec. 1), under tbe title, “Husband guilty of a misdemeanor for abandoning family”; tbe second was in 1883 (Tbe Code, vol. 1, cb. 25, sec. 790, and vol. 2, cb. 67, sec. 3866 et seq.), under tbe title, “Abandonment of wife and children by husband”; tbe third was in 1905 (Revisal of 1905, vol. 2, cb. 81, see. 3355, and cb. 121, sec. 5463), under tbe title, “Abandonment •of family by husband”; and tbe fourth, in 1919 (C. S., vol. 1, cb. 82, sec. 4447, and vol. 2, cb. 135, see. 8107), under tbe title, “Abandonment of family by husband.” If it be conceded that each of these titles was prepared by those who compiled tbe statutes and represented their personal interpretation, it is hardly reasonable to inhibit the conclusion that such interpretation has deceived tbe repeated approval of tbe Legislature. This deduction is fortified by tbe fact that tbe Legislature of 1917 seems to have approved it in authorizing tbe trial judge to provide for tbe support of tbe deserted wife or children, or both. C. S., 4449.

We are not disposed to adopt tbe argument that tbe offense is directed against the “husband” and not against tbe father. Tbe husband and tbe father is one, and tbe word used in tbe statute is intended simply to identify tbe person — descriptio personae — and not to restrict its significance to tbe relation between tbe husband and tbe wife to tbe exclusion of that between tbe father and tbe child. Tbe “husband,” if there be children, sustains toward bis family tbe dual relation of husband and father; be may be referred to as tbe one, but be is also tbe other. When tbe marriage relation is severed, whether by death or divorce, tbe bus-band is released from bis previous obligation to bis wife, but not from bis obligation to bis children. Here tbe decree dissolving tbe marriage contract left intact and unimpaired tbe defendant’s legal obligation to maintain bis children. If be was subject to prosecution before tbe divorce, tbe decree does not cover him with tbe mantle of immunity. Walker v. Crowder, 37 N. C., 487; Haglar v. McCombs, 66 N. C., 351; Sanders v. Sanders, 167 N. C., 319; 19 C. J., 353 (813). Even after tbe death or the divorce of tbe wife tbe husband is usually referred to as tbe surviving husband or tbe divorced husband, just as tbe “husband of a daughter” includes the husband of a deceased daughter. In re Ray’s Estate, 35 N. Y. Sup., 481.

Tbe next question is whether tbe prosecution is barred by tbe statute of limitations. More than two years elapsed between tbe abandonment in June, 1919, and tbe institution of tbe action in December, 1921. If there were nothing else in tbe record, we should be compelled to bold that tbe prosecution could not be maintained. C. S., 4512. But tbe evidence shows that within two years next preceding tbe commencement of tbe prosecution tbe defendant recognized as to bis children tbe restored relation, and voluntarily reassumed bis obligation to maintain tbem (bis civil liability was never suspended) by bestowing gifts, not of food or clothing, it is true, and by bis promise to tbe trustee appointed by bim and bis wife (supported by tbe consideration of a legal duty) to provide for tbem a substantial amoiint of money. Thereafter, and within two years prior to tbe prosecution be again abandoned bis children and withheld all support. In S. v. Hannon, 168 N. C., 215, tbe trial judge instructed tbe jury that a new promise to provide support would repel tbe bar of tbe statute and tbe instruction was sustained. In that case, besides making tbe promise, defendant paid bis wife tbe sum of $5; and while this circumstance is referred to in tbe opinion, it is not referred to in tbe judge’s instruction to tbe jury. However, in tbe present case tbe value of tbe defendant’s gifts, regardless of bis promise, far exceeded this amount. In S. v. Davis, 79 N. C., 604, the Court said: “Tbe parties [husband and wife] were together treating as to what should be their future relations. Tbe wife proposed a complete restoration of their marriage relations, which tbe husband declined, but be agreed to support her, and did support her for two weeks, when be refused to support her any longer. Being already separated, this refusal completed tbe second offense.” Tbe test of a legal restoration, of tbe severed marital relation is not necessarily whether tbe delinquent husband and tbe abandoned child actually lived together after tbe abandonment, because tbe relation may be restored although they do not live in tbe same home. Here, as in tbe Davis case, supra, tbe father being still separated from bis children, bis refusal to support tbem after voluntarily reassuming tbe obligation that be bad previously disowned, completes tbe second offense.

After a deliberate investigation of tbe record, we find no error. It is not our province to determine tbe culpable cause of tbe unfortunate separation of tbe wife and children from tbe husband and father. Ours should be tbe calm, judicial opinion, and our concern, tbe proper construction of tbe statute under consideration when tested by tbe approved canons of interpretation. With our conception of tbe purpose and intention of tbe Legislature, we cannot approve a construction of this statute which would make is possible for a man who is both husband and father willfully to abandon bis wife, and after her death or divorce willfully to relinquish all concern for bis children born of tbe marriage and commit tbem to tbe charity of tbe State without providing raiment for their comfort, food for their sustenance, training for their welfare, or shelter for their refuge and protection, and yet to retain immunity from guilt.

No error.