#### STATE v. COSTA J. MANON.

(Filed 25 January, 1933.)

1. Husband and Wife A c — Resumption of marital relation does not bar State’s right to prosecute husband for abandonment.

Abandonment of the wife by the husband is a statutory offense, and it is not condoned, so far as the State’s right to lirosecute is concerned, by a subsequent resumxition of the marital relation. O. S., 4447.

2. Husband and Wife A d: 'Criminal Law D a — Abandonment of wife held to llave talcen x>lace in this State and our court had jurisdiction.

Where the husband abandons his wife in this State and thereafter goes to Reno for the purpose of securing a divorce, and the wife follows him there for the pulpóse of contesting the suit, and the parties there resume the marital relation, and thereafter the husband returns to this State and later the wife also returns here, and the marital relation is not resumed here and he refuses to contribute to her suiiport: *Held,*the resumption of the marital relation in Reno does not affect the State’s right to prosecute for the xirior abandonment in this State, and our State courts have jurisdiction of the lirosecution for such abandonment.

*533. Judgments K b — Judgment held not conditional, but order ior capias to issue on motion of solicitor was void.

Judgment in this prosecution for abandonment of wife held not conditional, C. S., 4449, but order that *capias*issue at any time on motion of solicitor is void and not a part of judgment, and *capias*may issue only upon order of the court.

Appeal by defendant from *Sink, J.,*at May Term, 1932, of Btra-combe.

No error.

*Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.*

*W. A. Sullivan and R. R. Williams for defendant.*

Adams, J.

Tbe defendant was convicted of tbe abandonment and nonsupport of bis wife, in breach of C. S., 4447, and from tbe judgment pronounced be appealed to tbe Supreme Court. He assigned as error tbe court’s refusal to dismiss tbe action, to direct a verdict against tbe State, and to instruct tbe jury that if tbey should find from tbe evidence that tbe abandonment took place in Eeno, Nevada, and not in North Carolina, their verdict should be not guilty.

These assignments are based upon tbe assumption either that tbe evidence necessarily shows or that there is evidence tending to show that tbe act of abandonment was committed in another State. True, tbe courts of this State have no jurisdiction of extra-territorial crimes, *S. v. Buchanan,*130 N. C., 660, but in view of tbe facts disclosed we cannot agree with tbe defendant as to either assumption. Tbe evidence is that tbe crime of abandonment and nonsupport was consummated in Buncombe County. Tbe defendant went to Eeno; bis wife followed him there intending to contest bis suit for divorce; while there tbey lived together a part of tbe time, and be gave her five dollars. After instituting bis action for divorce be came back to Asheville. Soon after-wards bis wife returned, but she has not lived with him since that time, and be has refused to contribute anything for her support.

Tbe conduct of tbe parties in Eeno does not bar tbe State’s prosecution of tbe crime. Abandonment of tbe wife by tbe husband was not a criminal offense at common law; it is a statutory misdemeanor. No common-law implications attach to tbe offense, and it is not condoned by tbe renewal of tbe marital relation.

Condonation in law is tbe conditional forgiveness by a husband or wife of a breach of marital duty by tbe other, whereby tbe forgiving party is precluded, so long as tbe condition'is observed, from claiming redress for tbe breach so condoned. Its basis is tbe agreement of tbe parties to a civil action, not tbe consent of tbe State, and tbe condition *54is, that the original offense is forgiven if the delinquent will abstain from the commission of a like offense afterwards and treat tlie forgiving party with conjugal kindness. Bishop on Marriage and Divorce, sec. 53; *Gordon v. Gordon,*88 N. C., 45; *Lassiter v. Lassiter,*92 N. C., 129; *Page v. Page,*167 N. C., 346; *Jones v. Jones,*173 N. C., 279. If the condition is violated the original offense is revived, *Blakely v. Blakely,*186 N. C., 351; but as any asserted condonation between the parties does not affect the right of the State to prosecute the defendant, we need not decide whether his failure to support his wife after their return to Asheville revived the original offense. The statute of limitations is not involved.

The judgment is not conditional, as contended by the defendant, C. S., 4449, *S. v. Vickers,*196 N. C., 239; but the order that a capias issue at any time on motion of the solicitor is ineffective. *S. v. McAfee,*189 N. C., 320. If the judge had no authority to direct the solicitor to have the capias issued, the order is not part of the judgment; it is void. *S. v. Vickers,*184 N. C., 676, 680. The process may issue upon an order of the court. We find

No error.