The defendant assigns error:
The refusal of the court below to allow the defendant’s motion of non-suit upon the ground that if any offense was committed it was not committed in the State of North Carolina, and, therefore, not within the jurisdiction of this Court.
We do not think the assignment of error can be sustained.
The law pertinent, C. S., 4447, in part is as follows: “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.”
■ There is no assignment of error to the charge of the court below. The major contention made by defendant was to the effect that if any offense was committed, it was not committed in the State of North Carolina; therefore, the court had no jurisdiction.
The court charged fully the elements of the crime that the State had to establish beyond a reasonable doubt before the defendant could be convicted.
“There are two elements of this offense — wilful abandonment and failure to support — and both must be alleged and proved. S. v. Toney, *670162 N. C., 635; S. v. May, 132 N. C., 1021; S. v. Smith, 164 N. C., 476; S. v. Hopkins, 130 N. C., 647. Abandonment is not a continuing offense, day by day (S. v. Hannon, 168 N. C., 215), but the duty to support the wife is a continuing one during the existence of the marital union, and must be performed unless there is some legal excuse for nonperformance of it, and when defendant withdrew his support from his wife he became indictable under the statute, even though he lived in another State and had kept his promise and supported his wife for several years. His last delinquency must fix the beginning of his criminal liability.” S. v. Beam, 181 N. C., 599; S. v. Yelverton, 196 N. C., 64.
It was contended by the State that the defendant wilfully abandoned his wife and child without providing adequate support in Durham, N. 0. The defendant contended that if he did wilfully abandon his wife and child without providing adequate support that this took place in Georgia and he committed no offense in North Carolina. These contentions were fully set forth in the charge by the court below, and the court charged: “It is a question of fact for you to determine upon the evidence.”
In 30 C. J., at page 511, part section 18, we find the following: “It is the husband’s right to choose and establish the matrimonial domicile, and in general it is the duty of the wife to submit to the determination of the husband and to follow him to the domicile of his choice. On a change of domicile by the husband, it is the duty of the wife to follow him to the new domicile. The right of the husband to determine the domicile must be reasonable and not arbitrarily exercised. In exercising the right, the husband should have due regard for the comfort, health, welfare, safety and peace of mind of the wife.” 13 R. C. L., at p. 989, sec. 9.
“Where a husband changes his residence from a consideration of convenience or business advantage it is, generally speaking, the duty of his wife to accompany him.” Monahan v. Auman, 39 Pa. Super., 150, 153; 30 C. J., supra.
The record shows that the husband’s domicile was in Durham. In re Ellis, 187 N. C., 840; Gower v. Carter, 194 N. C., 293, 195 N. C., 697. In Hicks v. Skinner, 71 N. C., at p. 543, it is said: “It must be held, however, that upon marriage the domicile of the wife by construction of law, became that of the husband.”
Under the facts and circumstances of this case, we think that there was sufficient evidence to be submitted to the jury that the abandonment was wilful, and that there was a failure to provide adequate support, and both took place in Durham, N. C. We find
No error.