State v. Smith

84 S.E.2d 913 (1954)

241 N.C. 301

STATE v. George Vance SMITH.

No. 579.

Supreme Court of North Carolina.

December 15, 1954.

*914 W. P. Burkhimer, Wilmington, for defendant-appellant.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody, Harvey W. Marcus, Chapel Hill, Member of the Staff for the State.

WINBORNE, Justice.

Among the many assignments of error brought up by defendant for consideration, the one, Number 24 based upon exception Number 29, to denial of his motion for arrest of judgment is well taken. The motion should have been granted.

The General Statute 14-322 in pertinent part reads: "If any father * * * shall willfully abandon his * * * child or children * * * without providing adequate support for such child or children, he * * * shall be guilty of a misdemeanor * * *."

Thus, to constitute a violation of this criminal statute the father must have willfully abandoned his child or children, without providing adequate support for such child or children.

*915 Testing the offense charged against defendant in instant case by the provisions of the statute, the essential element of "willful abandonment" is lacking. It is settled that a charge in a warrant or bill of indictment must be complete in itself, and contain all the material allegations which constitute the offense charged. State v. May, 132 N.C. 1020, 43 S.E. 819. Hence in the absence of such averment the warrant is defective, and will not support the judgment. Therefore, the motion in arrest of judgment should have been allowed.

However, it is provided in G.S. § 14-322 that the abandonment of children by the father shall constitute a continuing offense and shall not be barred by any statute of limitation until the youngest living child shall arrive at the age of eighteen years.

Defendant is, therefore, amenable to further prosecution if the State elects so to do.

For reasons stated the judgment is arrested,and defendant is released therefrom.

Judgment arrested.