#### STATE v. JOHN DEATON.

A husband who wilfully abandoned his wife prior to the ratification of the act of 1869, chap. 209, cannot be indicted therefor.

Justices of the Peace have concurrent jurisdiction with the Superior Courts under said act.

The defendant was indicted under the 1st section of chapter 209, act of 1869, entitled “ an act to protect married women from the wilful abandonment, or neglect of their husbands,” tried before Cloud, J., at Spring Term, 1811, of Rowan Superior Court.

The facts, were that in 1866, the defendant wilfully abandoned his wife, without providing her with adequate support, since which time he has never lived with her, nor in any manner provided for her maintenance. The defendant’s counsel asked the Court to instruct the j ury, that as the abandonment occurred prior to the ratification of the act of April 12th, 1869, that ■defendant was not guilty, which the Court declined doing, but-informed the jury if they believed the facts to be true, as testified to by the witnesses, then defendant was guilty, to which ■defendant excepted. Yerdict guilty. Rule, &c. Appeal to the Supreme Court.

Attorney General, for the State.

Blaokmer & MeCorkle, for defendant.

Boyden, 3.

The Court at first, thought that the decision of this case might be put upon the question of jurisdiction alone, and we were disposed to put the decision upon that ground, and thereby save the scandal that must and often does arise by the investigation of such cases in the Superior Courts; but upon a close examination of the wording of the statute, we think this cannot be done, as the act authorizes the infliction of both the *497fine and imprisonment, and not merely a fine or imprisonment for one month, as prescribed in Article IY, Section 33, of the Constitution.

The words, wilful-abandonment, as used in the statute, include the act oí separation, and not merely its continuance; and as this abandonment took plaee before the passage of the statute tinder which the defendant is indicted, he cannot be convicted.

Justices of the Peace may entertain jurisdiction of this offenee under the .act of 1869, chapter 178, by observing the rules prescribed in section 6, of sub-chapter IY. of said act, and we think at the more appropriate jurisdiction.

Per Curiam. There is error.