PREFACE.

The favorable reception accorded the first, second and third editions of this book by the legal profession has to some extent justified the getting out of a fourth edition. In this edition much care has been taken in trying to correct errors and supply omissions occurring in the former editions, the object being to make this work a complete guide to the criminal law of the state.

Owing to the fact that our criminal statutes are mixed indis'criminately throughout both volumes of The Revisal with statutes pertaining exclusively to civil matters, much difficulty has been experienced in grouping our criminal statutory law under appropriate titles. Many decisions are also of such a character that they might be very appropriately cited under different statutes, thus requiring that they be many times duplicated; but, in order to avoid duplicating the citations as far as possible, each case has been placed under the statute where it seemed most appropriate, and cross-references used as a guide, which it is hoped will prove sufficient.

No forms have been given except the forms for making requisitions recommended by the INTERSTATE EXTRADITION CONFERENCE held in New York in 1887, which have been adopted by the Governor of North Carolina as well as by most, if not all, the other states. These forms have been given for the reason that lawyers often have to act in a great hurry in securing extradition papers, and they have no time to apply for blank forms or to study the preparation of such forms. The rules to be observed in making requisitions accompany the forms.

The number of each statute as found in The Revisal of 1905 will be found in parenthesis opposite the number adopted in this book.

We have also added the Southeastern citations, and hope that this new feature of the book will be appreciated by members of the profession.

GREENSBORO, N. C., November, 1916.

EDWARD C. JEROME,
THOMAS J. JEROME.

NORTH CAROLINA REPORTS.

From 1st N. C. to 62d N. C. How numbered and cited. Order of the Supreme Court adopted at Spring Term, 1891, 108 N. C., 805.

Inasmuch as several of the volumes of Reports prior to the 63rd have been reprinted by the State with the number of the Report instead of the number of the reporter, and still other volumes will be reprinted and numbered in like manner, it is permissible for counsel hereafter, in their option, to cite the volumes prior to the 63rd Reports, respectively, as follows:

JEROME'S

CRIMINAL CODE AND DIGEST

OF NORTH CAROLINA

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.

Both abandonment and failure to provide adequate support for wife and child must be alleged and proved. Smith, 164-475; 79 S. E. 979.

Abandonment must be wilful and wrongful. Smith, 164-475; 79 S. E. 979. An offer to provide a home for the wife is no defense if made in bad faith. Smith, 164-475; 79 S. E. 979.

Where failure to support and abandonment are not denied it is not prejudicial error for the court to admit a part of the defendant's answer in an action for divorce brought by his wife to the effect that he had sold his property and left the State. Smith, 164-475; 79 S. E. 979.

Where the abandonment is not denied testimony of the sheriff that he could not find the husband to serve process is harmless. Smith, 164–475; 79 S. E. 979.

In order to constitute the crime of abandonment two elements must concur; (1) abandonment; (2) failure to provide adequate support, and if either of these is wanting the defendant must be acquitted. Toney, 162-635; 78 S. E. 156.

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; 40 S. E. 973.

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; 40 S. E. 973.

ADULTERY OF Wife a DefensE.—If a wife is guilty of adultery, the husband is not liable to indictment for abandonment. Hopkins, 130-647; 40 S. E. 973. 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, 130647; 40 S. E. 973.

The objection that the evidence on the part of the defendant tended to establish adultery on the part of the wife, and the judge did not advert to this in his charge, can not avail the defendant, there being no prayer to charge as to this phase of the case. Hannon, 168-215.

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 offense 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.

Where there has been a complete act of abandonment and no renewal of the marital association, the action is barred in two years. Hannon, 168-215.

But where defendant, upon indictment for abandonment more than two years after the first act of abandonment, promised to support the prosecutrix and live with her again, and paid her five dollars for her support, this amounts to a new promise to support and a renewal of the marital obligation, and a failure to support her after such promise makes the defendant guilty. Hannon,

168-215.

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; 14 S. E. 856.

INDICTMENT. An indictment for abandoning a wife must allege a failure to support. May, 132-1020; 43 S. E. 819.

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; 25 S. E. 719.

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 judg ment 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, 100457; 6 S. E. 657.

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 arraignment, and not by motion to quash. Martin, 82-672.