#### STATE v. LEE JONES.

(Filed 7 October, 1931.)

1. Parent and Child A b — Failure to support children is continuing offense and prosecution therefor is not barx*ed by conviction for prior time.

Where, in a prosecution for the violation of O. S., 4447, making it a misdemeanor for a husband to abandon his wife and minor children without providing for their support, and providing that the abandonment shall be a continuing offense and not barred by any statute of limitations until the youngest living child shall obtain the age of eighteen years, *Held:*a plea by the defendant of former conviction of the same offense is good as to the period prior to the conviction, but it is not a bar to the prosecution for his failure to provide adequate support for his children subsequent thereto.

2. Same — Plea that defendant was in charge of county coui’t was met by instruction that only failure to support since that time be consideired.

Where the father has been convicted of abandonment of his minor children without providing for their support, and the judgment has been suspended upon his payment into court of a sum of money for their support, an objection in a later prosecution under the statute that he was in charge of the county court when the crime for which he is now prosecuted was alleged to have been committed is met by the charge of the court in the instant case that the jury should consider only such evidence as tended to show his failure to provide for their support since the final disposition of the former case. O. S., 4623, 4625.

Appeal by defendant from *Devin, J.,*at February Term, 1931, of GrREENE.

Tbe defendant was indicted for tbe wilful abandonment of bis children in breach of tbe following statute: “If any husband shall wilfully abandon bis wife without providing adequate support for such wife, and tbe children wbicb be may have begotten upon her, be shall be guilty of a misdemeanor: Provided, that tbe abandonment of children by tbe father shall constitute a continuing offense and shall not be barred by any statute of limitations until tbe youngest living child shall arrive at the age of eighteen years.” C. S., 4447.

*425Tbe defendant pleaded former jeopardy and former conviction and moved tbat tbe action be dismissed for tbe reason that be bad previously been indicted and convicted of tbe same offense. Tbe motion was overruled and tbe defendant excepted. At tbe conclusion of tbe evidence tbe motion was renewed and again denied, and again tbe defendant excepted.

After bis conviction be moved in arrest of judgment, and bis motion was denied. Judgment was pronounced and be appealed upon assigned error.

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

*Pittman & Pure for defendant.*

Adams, J.

On 14 November, 1929, tbe defendant was indicted in tbe County Court of Greene County for tbe abandonment of bis wife and children. *S. v. Bell,*184 N. C., 701. He was arrested on 18 December, 1929, and was tried and convicted, and on 24 December, 1929, be paid into court for tbe use of bis wife and children tbe sum of two hundred dollars, to be disbursed by tbe clerk in monthly installments of thirty dollars. Judgment was suspended and be was discharged 14 October, 1930. Tbe indictment on which be was tried in tbe present case was returned by tbe grand jury at tbe December Term, 1930, of tbe Superior Court.

Tbe principal exception involves a construction of tbat part of tbe statute which provides “tbat tbe abandonment of children by tbe father shall constitute a continuing offense and shall not be barred by any statute of limitations until tbe youngest living child shall arrive at tbe age of eighteen years” — tbe defendant contending tbat this clause was designed merely to prevent tbe statute from barring an indictment after two years from tbe first act of desertion.

*We*do not concur in this interpretation. A recognized principle of tbe common law, as well as of natural and moral law, imposes upon a father tbe duty of providing for tbe maintenance of bis minor children, tbe duty to support and tbe right to custody and service being reciprocal. This obligation continues until tbe children in legal contemplation axe reasonably able to provide for themselves and is not abrogated by tbe father’s abandonment of bis family. Tbe object of tbe statute is to enforce tbe obligation, not by subjecting tbe father to a civil action at tbe instance of tbe children, but by tbe infliction of punishment for bis dereliction. It would be á plain evasion of tbe legislative intent to bold tbat by suffering tbe penal consequences of a single violation of tbe statute tbe defendant could consign bis destitute children *426to tbe embrace of charity and thus absolve himself from liability to further prosecution.

Wharton defines a continuing offense as a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy. Crim. Pleading, 474. It is an offense which continues day by day. *S. v. Hannon,*168 N. C., 215; *S. v. Beam,*181 N. C., 597. The statute in express terms constitutes the abandonment of children by the father a continuing offense. The prosecution of an offense of this nature is a bar to a subsequent prosecution for the same offense charged to have been committed at any time before the institution of the first prosecution, but it is not a bar to a subsequent prosecution for continuing the offense thereafter, as this is a new violation of the law. 16 C. J., 268, sec. 447. This general principle is fortified by the distinct provision that the statute of limitations shall not bar prosecution until the youngest living child shall arrive at the age of eighteen years.

We have treated the exception upon its merits without reference to the rule that the pleas of former jeopardy and not guilty are matters of evidence and not available to the defendant upon a preliminary motion to dismiss the action. *S. v. Gibson,*170 N. C., 697.

The objection that the defendant was in charge of the County Court when the crime for which he is now prosecuted is alleged to have been committed is met by the instruction that the jury should consider only such evidence as tends to show that the defendant violated the statute after the final disposition of the former case. Especially in view of this instruction the failure to specify a particular day in the indictment was not fatal to the prosecution. C. S., 4623, 4625. The remaining exceptions require no discussion.

No error.