State v. Rowland, 205 N.C. 544 (1934)

Jan. 10, 1934 · Supreme Court of North Carolina

205 N.C. 544

STATE v. CHARLIE P. ROWLAND.

(Filed 10 January, 1934.)

1. Husband and Wife G d—

Wliere defendant admits that he abandoned his wife, and the evidence is conflicting as to whether such abandonment was wilful, the case is properly submitted to the jury in a prosecution for wilful abandonment.

2. Criminal Law L e—

Where it does not appear of record what the testimony of witnesses would have been if they had been allowed to testify, exceptions to the exclusion of their testimony will not be considered.

3. Criminal Law G q — In prosecution for abandonment testimony of bus-band tbat wife bad admitted pregnancy at time of marriage is incompetent.

In a prosecution for wilful abandonment, testimony of the husband as to admissions or declarations of the wife made to him that she was pregnant at the time of their marriage, offered on the issue as to whether the abandonment was wilful, is incompetent, and in this case the husband obtained the benefit of this contention by other testimony admitted without objection.

Appeal by defendant from Warliclc, J., at May Term, 1933, of RowaN. No error.

Attorney-General Brummitt and Assistant Attorney General Sea-well for the State.

G. P. Barringer for defendant.

Adams, J.

Tbe defendant was indicted in two counts charging bina witb tbe wilful abandonment of bis wife and tbe wilful neglect and refusal to provide adequate support for bis wife and tbeir children while they were living together. Tbe jury returned a general verdict finding tbe defendant guilty on both counts, and from tbe judgment pronounced be appealed to. this Court.

Upon bis cross-examination tbe defendant admitted that be bad not provided a borne for bis wife or contributed anything to her support, and in effect that be bad abandoned her, bis defense being that tbe abandonment was not wilful. As tbe evidence was conflicting tbe case could not properly have been withdrawn from tbe jury.

Tbe second, fourth, and fifth exceptions relate to tbe exclusion of evidence, but as tbe answers to tbe several questions are not revealed tbe exceptions are not meritorious. For aught that appears tbe answers may have been unfavorable to tbe appellant. Snyder v. Asheboro, 182 N. C., 708; Barbee v. Davis, 187 N. C., 78; New Bern v. Hinton, 190 N. C., 108.

Declarations or admissions of tbe wife alleged to have been made to tbe defendant as to her condition at tbe time of her marriage were incompetent; but tbe defendant testified that be “learned of her condition of being pregnant” at that time and that be left her for this reason. He, therefore, bad tbe benefit of this circumstance in reference to tbe question whether bis abandonment was wilful.

There was no error in tbe charge or in denying tbe motion to arrest tbe judgment or to set aside tbe verdict.

No error.