THE

NORTH CAROLINA CRIMINAL CODE AND DIGEST.

ABANDONMENT.

SEC. 1. Abandonment of wife and children by husband.

SEC. 2. Failure to provide support presumptive evidence.

SEC. 3. Right of custody forfeited..

Section 1 (970). Abandonment of wife and children by husband. 1868-'9, c. 209, s. 1. 1873-'4, c. 176, s. 10. 1879, c. 92. 1895, c. 504. c. 83. 1889, c. 504.

1893,

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.

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 competeat witness to prove the marriage. Brown, 67-470.

ABANDONMENT PRIOR TO 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 offence, he not having lived with her since the original abandonment. Dunston, 78-418.

NEW INDICTMENT.--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.

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 (971). Abandonment, failure to provide support presumptive evidence thereof. 1868-'9, c. 209, s. 3.

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.

Sec. 3. Abandonment, right of custody forfeited. 1885, c. 120.

In all cases where the surviving parent of any orphan child or children shall have wilfully abandoned the care, custody, nurture and maintenance of such orphan child or children to kindred, relatives or other persons, such parent shall be deemed to have forfeited all rights and privileges with respect to the care, custody and services of such child or children.

The rights and privileges of such parent may be restored by the voluntary surrender of such child or children by the person or persons in whose care and custody such child or children may be.

The rights and privileges of such parent may also be restored by order of any judge of the superior court made in the district in which such child or children may be, when it shall appear to the satisfaction of such judge that the interest and welfare of such child or children will not be materially prejudiced by such restoration. That the person or persons having the care and custody of any such child or children shall have at least ten days' notice of the time and place of the hearing of the application for such order of restoration, and shall be permitted to resist the same.

Any parent whose rights and privileges may have been forfeited by the provisions of this act, who shall procure the possession and custody of any child or children, with respect to whom his or her rights and privileges are forfeited, otherwise than as by this act is provided, shall be deemed guilty of a crime, and upon conviction shall be punished as for abduction.

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. Lamon, 10 (3 Hawks), 175.

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 arraignment, 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 dwellinghouse, 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 offences 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 offence 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.

ABDUCTION.

Sec. 4 (973). Abduction of children. 1879, c. 81.

Any one who 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, shall be guilty of a crime, and on conviction shall be fined or imprisoned at the discretion of the court, or may be sentenced to the penitentiary for a period not exceeding fifteen

years.

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 defence 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 defence. 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.

Sec. 5 (974). Abduction; conspiracy. 1879, c. 81. s. 2.

Every one who 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 aforesaid, or at school, to leave the persons aforesaid or the school, shall be guilty of a like offence, 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 offences.

ABORTION.

SEC. 6. Felony to administer to a pregnant woman any medicine to destroy her child, or to use an instrument with the same intent.

SEC. 7. Misdemeanor to procure miscarriage.

1881, c.

Sec. 6 975). Abortion, felony to administer to a woman pregnant any medicine to destroy her child, or to use an instrument with the same intent 351, s. 1.

Every person who shall wilfully administer to any woman either pregnant or quick with child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy said child, unless the same shall have been necessary to preserve the life of such mother, shall be guilty of a felony, and imprisoned in the penitentiary for not less than one year or more than ten years, and be fined at the discretion of the court.

Sec. 7 (976). Abortion, misdemeanor to administer medicine to pregnant woman or use any instrument with intent to procure miscarriage. 1881. c. 351, s. 2. Every person who shall administer to any pregnant woman, or prescribe for any such woman, or advise and procure such woman to take any medicine, drug or anything whatsoever, with intent thereby to procure the miscarriage of any such woman, or to injure or destroy such woman. or shall use any instrument or application for any of the above purposes, shall be guilty of a misdemeanor, and imprisoned in the jail or penitentiary for not less than one year nor more than five years, and be fined at the discretion of the court.

INDICTMENT. An indictment charging an attempt to kill by administering a poisonous drug, and an attempt to produce an abortion by the same means, is not demurrable for a misjoinder. Slagle, 82-653.

It is a common law misdemeanor to administer a noxious drug with intent to produce an abortion. Slagle, 82-653.

ABSENCE OF DEFENDANT DURING TRIAL.

On a trial for a felony no order that may prejudice the defendant can be made in his absence. Alman, 64-364; Blackwelder, 61 (Phil.), 38; Bray, 67-283.

It is the right of a defendant to be present when anything is said or done that may prove prejudicial to his interests; but where no instructions were given to the jury in the absence of the defendant, he can not complain that the court, in his absence, asked the jury if they desired any further instructions. Coley, 114-879.