State v. . HookerState v. . Hooker
- Reporters:
- , ,
- Before:
- Per Curiam.
Thе plea in abatement was too late aftеr the plea of not guilty; S. v. Oliver, ante, 329. The presumption of law is that the violation of law is presumed to take place where the indictment alleges. If it took place elsewhere the burden is upon the defendаnt to show that it took place in another county. S. v. Oliver, supra.
The court overruled the plea as to venuе upon the ground that it was too late after the plea of not guilty was entered, but out of abundant cаution submitted the following issue, “Did the alleged abandonmеnt take place in Anson County?” to which the jury responded “No.” The evidence was that the wife and child wеre living in Richmond County when’ the defendant executed his undertaking to contribute to the support of his wife and child by sending $10 on the first of each and every month to her аddress at Rockingham in Richmond County, and venue in this indictment upon his failure to do so was properly laid therefore in Richmond. S. v. Beam, 181 N. C., 597.
The evidence is that the defendant and the prosecutrix were married and lived in Anson, and the child was born of that marriage. She testified that thеreafter he left her and failed to provide anything for her and the child to live on, and the people from whom they had .bought their furniture took it away for thе unpaid installments thereon; that being left eritirely destitutе by the defendant abandoning her in Vades-boro in 1919, she sоught refuge with friends in the adjoining county of Richmond, and in Deсember, 1920, a warrant was issued by a justice of the peace charging the defendant with abandonment. At thе examination before the justice of the peace an agreement was entered into *763 in writing, wbiсb was put in evidence, between Mrs. Hooker and bеr husband, the defendant, that be would pay ber $10 per mоnth on the first day of each month for the support оf herself and child. The following month, January, 1921, in the Superior Court, a consent order was entered to that еffect. The defendant paid his wife $15 on the first day of Fеbruary and $10 on the first days respectively of March, Aрril, May, and June, 1921, but he failed to make any payment on the first day of July, and since then has continuously refused to make any payment.
The payment of this money was a recognition of the marital obligation and a renewal of it; S. v. Hannon, 168 N. C., 215. The offense was really not complete until he failed to support her, and the fаilure not to support not having occurred until 1’ July, 1921, the stаtute did not bar. S. v. Davis, 79 N. C., 603, and S. v. Beam, supra, are directly in point, and the statute of limitations cannot apply as the present indictment was found in April, 1923.
The question was also raised in this case as to whether the prosecuting witness did not abandon the defendant or leave him in such way as to justify his failure to support her. This contention was carefully and fully submitted to the jury in the charge, who found against the defendant. S. v. Bell, 184 N. C., 701, where the whole subject is fully discussed.
No error.