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THE NORTH CAROLINA

CRIMINAL CODE AND DIGEST.

ABANDONMENT.

Section 1 (3355). Abandonment of family by husband.

If any husband shall wilfully 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. Code, s. 970; 1868-9, c. 209, s. 1; 1873-4, c. 176, s. 10; 1879, c. 92.

PENDING ACTION FOR DIVORCE.-Where an action for divorce a vinculo is pending the wife may apply for alimony pending the trial and in that way get her support. Hopkins, 130-650.

MUST BE WILFUL.-The abandonment in order to make the husband guilty must be wilful and wilful means without cause to justify the abandonment. Hopkins, 130-649.

ADULTERY OF Wife a Defense.—If a wife is guilty of adultery, the husband is not liable to indictment for abandonment. Hopkins, 130-647.

Where there is evidence that the husband drove his wife from home and failed to support her on account of her adultery, though such charge is denied by the wife, it is error to leave the question of defendant's guilt or innocence to the jury as dependent upon the faithfulness or unfaithfulness of the wife, since this is to permit the jury to pass upon the issue as to guilt according to their finding upon a collateral and evidentiary question. Hopkins, 130-647.

WIFE A COMPETENT WITNESS.-The wife is a competent witness against the husband "as to the fact of abandonment or neglect to provide adequate support." Brown, 67-470.

MARRIAGE.-On indictment for abandonment, the wife is not a competent witness to prove the marriage. Brown, 67-470.

ABANDONMENT PRIOR TO THE RATIFICATION OF THE ACT.-Where the abandonment took place prior to the ratification of the act of 1869, the husband can not be convicted therefor. Deaton, 65-496.

FORMER CONVICTION.-A husband once convicted of an abandonment of his wife can not be again tried for the same offense, he not having lived with her since the original abandonment. Dunston, 78-418.

FORMER CONVICTION.-Where a warrant is issued against the husband more than two years after the act of abandonment, and on the trial he agrees to support his wife, and does so for two weeks, though he declines to live with her, and thereafter fails to carry out his agreement, such failure constitutes a fresh abandonment, and will support a new indictment. Davis, 79-603.

STATUTE OF LIMITATIONS.-Abandonment is not a continuing offence by reason of the continued separation, and an indictment found more than two years after the separation is barred by the statute of limitations. Davis, 79-603.

DURESS-MARRIAGE.-Where the husband is under arrest at the time the marriage is solemnized by virtue of an order made in a suit by the feme against him for breach of promise of marriage and seduction, the marriage is not voidable as having been contracted under duress, since duress can not be predicated of compulsion to discharge a legal duty. Davis, 79-603.

SUPPORT OF CHILDREN.-The failure of a father to provide for the support of the children is as much a violation of the statute as the failure to provide support for the wife, and an indictment charging such violation is sufficient. Kirby, 110-558.

INDICTMENT.—An indictment for abandoning a wife must allege a failure to support. May, 132-1020.

REPEALING ACT LIMITING JURISDICTION.Chapter 83, laws of 1893, entitled "An Act to Amend Chapter 504, Laws of 1889," is not defeated in its purpose of repealing the act of 1889 by an ambiguity arising in the body of the act in the failure to specify "laws of 1889." Woolard, 119-779.

Sec. 2 (3356). Abandonment, evidence of.

If the fact of abandonment and failure to provide adequate support of wife and children shall be proved, or, while being with such wife, neglect by the husband to provide for the adequate support of such wife or children, shall be proved, then the fact that such husband neglects applying himself to some honest calling for the support of himself and family, but is found sauntering about, endeavoring to maintain himself by gaming 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 wilful.

Code, s. 971; 1868-9, c. 209, s. 3.

Sec. 3 (3357). Abandonment, failing to support family.

If any husband while living with his wife shall wilfully neglect to provide adequate support for such wife or the children which he has begotten upon her, he shall be guilty of a misdemeanor.

Code, s. 972; 1868-9, c. 209, s. 2; 1873-4, c. 176, s. 11; 1879, c. 92.

Sec. 4 (3373). Procuring possession of child unlawfully.

If any parent who has forfeited his rights to the care and custody of any child by abandonment, as provided by section one hundred and eighty, shall procure the possession and custody of such child, with respect to whom his or her rights and privileges are forfeited, otherwise than as by law provided, he shall be guilty of the crime of abduction and shall be punished as for abduction.

1885, c. 120, s. 4.

ABATEMENT.

PLEA IN ABATEMENT.-A plea in abatement to an indictment for an assault pending in the superior court, that a prior indictment is pending against the defendant in the county court, is good, because the courts have concurrent jurisdiction. Yarborough, 8 (1 Hawks), 78.

An indictment is not defective because of the omission of an addition of the occupation of the defendant, but even if it was, a plea in abatement which commences, "and the said A. B. (the defendant), comes," etc., is itself defective, since it admits the defendant to be the person indicted. Newmans, 4 (2 Car. L. R.), 74 (171).

Where an erroneous judgment is rendered on a plea in abatement, the defendant may either appeal, or plead in chief, and on a second erroneous judgment assign errors upon the whole record. Quinnery, 1 (Tay.), 33 (25).

The court, in its discretion, may allow a defendant to withdraw a plea of not guilty and plead in abatement, but he can not claim to do so as a matter of right. Lemon, 10 (3 Hawks, 115).

A plea in abatement on the ground of the incompetency of one of the grand jurors put in after pleading to the indictment is not in apt time. Potts, 100-457.

A plea in abatement after plea of "not guilty" entered is only allowable at the discretion of the court. Jones, 88-671.

Objection to any irregularity in drawing a grand jury must be taken by plea in abatement on the araignment, and not by motion to quash. Martin, 82-672.

Slight variances in the name of a defendant appearing in different parts of the record will not sustain a motion for a new trial, or to arrest judgment. The objection. if available at all, can only be made by plea in abatement. Vestal, 82-563.

Where a case is continued without requiring the presence of defendant in court to enter his pleas, he is entitled, on his arraignment at a subsequent term, to plead a misnomer in abatement, or to enter any other plea which was open to him at the former term. Jackson, 82-565.

Where, on indictment against two defendants, the case is continued at the instance of one, a plea in abatement by the other at the subsequent term is in apt time. Watson, 86-624.

Where, upon arraignment of one charged as a principal with the crime of arson, the record showed that by the consent of court and the defendant the indictment was changed to charge an attempt to burn a dwelling-house, but no other charge was made by the grand jury, and the defendant thereupon "pleaded guilty to an attempt to burn a store," and was sentenced to imprisonment in the penitentiary: Held, that the attempted change of the bill without a new indictment, the plea of guilty and the judgment of the court were nullities, and that an accessory after the fact could not sustain a plea in abatement alleging the acquittal of the principal felon by proof of such proceedings. Smith, C. J., dissenting. Jones, 101-719.

It is a general rule that where two or more offenses arise out of the same transaction, a conviction or acquittal upon an indictment for one will not be good in bar of that for the other, unless the latter is a necessary ingredient of the former, and the defendant might have been convicted of it under the first indictment. Jones, 101-719.

NO EVIDENCE.-Where the accused establishes the fact that the bill was found without evidence or upon illegal evidence, it may be quashed or the matter pleaded in abatement. Lanier, 90-714.

NOL PROS.-Where two indictments for the same offense are had in different courts having jurisdiction and the court first acquiring jurisdiction enters a nol pros, the defendant can be tried in the court retaining jurisdiction. McNeill, 10 (3 Hawks), 183.

COURT MUST HAVE JURISDICTION.-It is only where a judgment is rendered by a court having jurisdiction that it is available as a plea in bar. Ivie, 118-1227.

A plea in abatement for wrong venue should give a better writ by naming the proper county. Carter, 126-1011.

An objection to the venue is waived if not taken in apt time by plea in abatement. Holder, 133-709.

A plea in abatement, and not a motion to quash, is the proper remedy for a defective venue. Lewis, 133-709.

If an indictment be found without evidence, or upon illegal evidence, as upon the testimony of unsworn witnesses, the matter may be pleaded in abatement. Roberts, 19 (2 D. & B.), 540.

If an erroneous judgment be rendered on a plea in abatement the defendant may either appeal or plead in chief, and upon a second erroneous judg ment assign errors upon the whole record. Quinnery, 3-25.

If there are two indictments for the same offense in different courts, the defendant may abate one by a plea that another court has cognizance of the case by a prior bill. Tisdale, 19 (2 D. & B.), 159.

ABDUCTION.

Sec. 5 (3358). Abduction of children.

If any one shall abduct, or by any means induce any child under the age of fourteen years, who shall reside with the father, mother, uncle, aunt, brother, or elder sister, or shall reside at a school, or be an orphan and reside with a guardian, to leave such person or school, he shall be guilty of a felony, and on conviction shall be fined or imprisoned in the state's prison for a period not exceeding fifteen years.

Code, s. 973; 1879, c. 81.

INDICTMENT. An indictment for the abduction of a female of the age of fifteen years with intent to defile her, can not be supported at common law or under the statute. Sullivan, 85-506.

The indictment need not state the means by which the abduction was accomplished, nor that it was done without the consent and against the will of the father, nor that defendant was not a nearer blood relation to the child than the person from whose custody it was abducted. George, 93-567.

FATHER'S CONSENT.-It is not necessary for the state to show a want of the father's consent; if the father's consent is relied on as a defense it is the duty of the defendant to show it. Chisenhall, 106-676.

CONSENT OF CHILD.-The consent of the child to leave is no defense. Chisenhall, 106-676.

FRAUD OR FORCE NOT NECESSARY.-It is not necessary that fraud or force should be used in order to constitute the crime of abduction under our statute,

but the crime is complete when the child is induced to leave home through persuasion or the exercise of such moral force as to create a willingness to leave. Chisenhall, 106-676.

BURDEN AS TO CONSENT.-In an indictment for abduction under Revisal, section 3358, an allegation or proof that the taking of the child "was against the father's will and without his consent" is not required. That the carrying was with the father's consent is no defense, the burden of which is upon the defendant. Burnett, 142-578.

NO FORCE NOR INDUCEMENT.-Abduction under Revisal, section 3358, is taking and carrying away a child, ward, etc., either by fraud, persuasion, or open violence. The consent of the child is no defense. If there is no force or inducement and the departure of the child is entirely voluntary there is no abduction. Burnett, 142-578.

MISJOINDER.-An indictment for abduction, containing two counts, one under Revisal, section 3358, which makes it a felony to abduct or by any means induce any child under the age of 14 years to leave the father, and the second count under the Revisal, section 3630, which makes it a misdemeanor to entice any minor to go beyond the state without the written consent of the parent, etc., can not be quashed for misjoinder of two different offenses, as the counts are merely statements of the same transaction to meet the different phases of proof. Burnett, 142-577.

Sec. 6 (3359). Abduction, conspiracy for.

If any one shall conspire to abduct, or by any means shall induce any child under the age of fourteen years, who shall reside with any of the persons designated in the preceding section, or at school, to leave the persons aforesaid or the school, he shall be guilty of a like offense, and on conviction shall be punished as prescribed in the preceding section: Provided, that no one who may be a nearer blood relation to the child than the persons named in said section shall be indicted for either of said offenses.

Code, s. 974; 1879, c. 81, s. 2.

Sec. 7 (3360). Abduction of married women.

If any male person shall abduct or elope with the wife of another he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage, has been an innocent and virtuous woman: Provided, that no conviction shall be had upon the unsupported testimony of any such married woman. 1903, c. 362.

EVIDENCE OF CHARACTER.-In an indictment for abduction and elopement, under Revisal, section 3360, where the character of the woman is, by express terms of the statute, directly in question, evidence as to her general character for virtue was properly admitted. Connor, 142-700.

BURDEN. In an indictment under Revisal, section 3360, providing that if any male person shall abduct or elope with the wife of another he shall be guilty of a felony, provided the woman since her marriage has been an innocent and virtuous woman, provided no conviction shall be had upon the unsupported testimony of the woman, the court erred in putting the burden of proving the facts of the first proviso on the defendant. Connor, 142-700.

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