#### STATE v. L. W. YELVERTON.

(Filed 26 September, 1928.)

1. Husband and Wife — Abandoment—Elements of Crime — Instructions,

Where there is sufficient evidence that the husband, indicted under C.. S., 4447,. had by his cruel conduct paused his wife to leave his home with the minor children of the marriage, a charge to the jury that leaves out wilfulness as an element of the offense is reversible error to the defendant’s prejudice.

Appeal by defendant from *Grady, J.,*at June Term, 1928, of (xREENE,

Criminal prosecution tried upon a warrant charging the defendant with abandonment and nonsupport of his wife and children in violation of-the provisions of C. S., 4447. .

The defendant and his wife have been married twenty-five years. They have four minor children, the youngest 12 and the oldest 20 years of 'age. It is the contention of the State that the prosecutrix and her children were forced to leave the defendant’s home because of cruel and barbarous treatment, while the defendant contends that his wife and children left of their own volition and without just cause.

The prosecutrix testified on cross-examination as follows: “I concluded that my children and I could get along better without him, and we left him. He told us he had house rented for us, but I told him I could not stay and would not do it. . . . I didn’t want any other house; I only craved peace.”

It is also contended that the defendant has failed to support his wife and children in an adequate manner since their separation in January, *651928, but it is tbe position of tbe defendant tbat be is not required to furnisb a borne other tban tbe one in wbieb be lives or to support tbem elsewhere.

On tbe substance of tbe two offenses, tbe court charged tbe jury as follows:

1. “If tbe husband, by bis acts and conduct at home, renders tbe life of bis wife miserable and intolerable to such an extent tbat she cannot live with him peaceably, or without danger to her life or person, and she leaves him for tbat reason, and no other, and be thereafter fails to maintain and support her, be is just as guilty of abandonment as if be bad left her himself.”

2. “Tbe second charge is a failure to support tbe children — bis children. On tbat count in tbe bill, gentlemen of tbe jury, I charge you tbat upon bis own evidence be is guilty. He admits on tbe witness stand tbat be has not contributed anything at all to tbe support of bis three children, three minor children, since January, 1928, except ten dollars. He cannot refuse to support bis children because bis wife left him, tbat is, without just cause, because even if tbe wife were to blame, and she leaves him and takes with her tbe children, tbat does not relieve him of tbe obligation to maintain and support tbe children, and be admits be has not done it, and if you believe him, gentlemen, you should return a verdict of guilty of abandoning bis children.”

Tbe defendant excepts to these instructions and assigns tbem as errors.

From an adverse verdict, and judgment pronounced thereon, tbe defendant appeals.

*Attomey-Generail Brummitt and Assistant Attorney-General Nash for the State.*

*J. F. Thomson and J. Paul Frizzelle for defendant.*

Stacy, 0. J.,

after stating tbe case: It will be observed tbat tbe vital element of wilfulness, necessary to constitute an abandonment under tbe statute, is omitted from both instructions assigned as errors. Tbe language of tbe statute is as follows: “If any husband shall wilfully abandon bis wife without providing adequate support for such wife, and tbe children which be may have begotten upon her, be shall be guilty of a misdemeanor.” C. S., 4447.

Speaking to a similar situation and interpreting tbe statute in *S. v. Johnson,*194 N. C., 378, 139 S. E., 697, it was said: “An offending husband may be convicted of abandonment and nonsupport when — and only when — two things are established: First, a wilful abandonment of tbe wife; and, second, a failure to provide ‘adequate support for such *66wife, and the children which he may have begotten upon her.’ *S. v. Toney,*162 N. C., 635; *S. v. Hopkins,*130 N. C., 647. The abandonment must be wilful, that is, without just cause, excuse or justification. *S. v. Smith,*164 N. C., 475. And both ingredients of the crime must be alleged and proved. *S. v. May,*132 N. C., 1021.”

• It is conceded by the learned Assistant Attorney-General, Mr. Nash, that the instruction with respect to the alleged abandonment of the children .is erroneous; *S. v. Bell,*184 N. C., 701, 115 S. E., 190.

New trial.