State v. Toney

May 13, 1913
Versions:162 N.C. 635
78 S.E. 156
1913 N.C. LEXIS 411
Walker, J.,

after stating the casej "We have examined the record in this case very carefully, and-have failed to find any evidence that defendant failed to provide his wife with adequate support, even if the evidence is sufficient to show an abandonment. The crime denounced by the statute consists of. two elements : first, abandonment; -second, failure to provide adequate support. If either is wanting, there is no criminal pffense. This is clear; but it is also so decided in S. v. May, 132 N. C., 1020. The failure to establish this essential ingredient of the crime is fatal to. the prosecution. It does not appear what was an adequate support for the wife, and, for all.that does appear, she received from her husband all that was required to meet her expenses. There was evidence in the case that he supplied all of' her wants and treated her kindly while they lived in South Carolina, and when she prepared to leave him, stating that she did not care to come back, he said to -her that, if she stayed there with him, “he would do his best for her.” He proved a good character by the State’s witness, and there was no’ testimony tending to disparage him, except the bare circumstances of the case. A witness testified that, after she had left him and returned to her father’s home and refused to come hack and live with him, and after he was indicted, he heard defendant say that “he did not propose to live with an aggravating woman.” This was not a very nice, but a very rude and indelicate speech. It was morally reprehensible, and the same may be.said of his offensive remark to his wife in South Carolina. He is not, though, indicted for mere rudeness of speech or unseemly conduct, but for a violation of the criminal law, and what he thus said has no direct or material bearing upon the legal question involved. All things considered, *637 we conclude tbat the State failed in its proof as. to inadequacy of support, if not as to the abandonment. It may seriously be doubted if the facts, as now presented, bring this case within the intent and meaning of the statute. Witty v. Barham, 347 N. C., 479. But we may say more confidently, that defendant is not criminally liable in this State for any marital delinquency in South Carolina. If any offense was committed in that State, he can be made to answer only in her courts. Whether he can be successfully prosecuted there, is not a part of our inquiry. We are concerned only with the enforcement of our own laws, and, therefore, merely' decide that there was no evidence of the charge in the indictment that defendant did not provide his wife with an adequate support. This point is sufficiently raised by the exceptions.

New trial.