¶1concurring: C. S., 4447, provides:. “Abandonment of family by husband. If any husband shall willfully 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” ; and C. S., 4449, provides: "Order of support from husband's property or earnings. Upon any conviction for abandonment, any judge or any recorder having jurisdiction thereof may, in his discretion, make such order as in his judgment will best provide for the support, as far as may be necessary, of the deserted wife or children, or both, from the property or labor of the defendant.” In this case the evidence was uncontradicted that the defendant “abandoned, refused, and failed to support in any way his children, Josephine Bell, aged 4 years; Mabel Bell, aged 6 years; Ellen Bell, aged 8 years; and Mary Baxter Bell, aged 10 years, and has not contributed anything to their support since said date” (July, 1920). This was so expressed in the warrant which was sued out 30 December, 1921, and in the indictment, and the jury found the charge to be true.
¶2The warrant sets out that on 30 December, 1921, Thomas L. Jones, justice of the peace of Yance County, issued his warrant as follows: “State v. J. E. C. Bell. Mabel K. Bell, being duly sworn, complains and says that at and in said county of Yance, in Henderson Township, on or about .... July, 1920, J. E. O. Bell, affiant’s divorced husband, did unlawfully, willfully, and feloniously abandon, refuse, and fail to support in any way his children, Mary Baxter Bell, age 10 years; Ellen Bell, age 8 years; Mabel Bell, age 6 years, and Josephine Bell, age 4 years; and has not contributed anything to their said support since said date, contrary to the form of statute and against the peace and dignity of the State.”
¶3On 5 January, 1922, the defendant was arrested upon that warrant and was bound over to the Superior Court of Yance on 6 March, 1922. The indictment then found recites that on .... July, 1920, the defendant, J. E. C. Bell, “Unlawfully and willfully did abandon his children, viz.: Mary Baxter Bell, Ellen Bell, Mabel Bell, and Josephine Bell, without providing adequate support for said children, against the form of the statute in such case made and provided, and against the peace and dignity of the State.” It is true there was a second count in the bill that the defendant had abandoned his wife without providing adequate support for such wife and children, but he was not tried or convicted on this count, and it appears from the warrant, and from the first count of the indictment, on which he was tried, that the defendant’s wife had been divorced from him at the time the warrant and indictment were found.
¶4The judge, in accordance with the provisions of section 4449, adjudged that “the defendant pay to the clerk of Yance Superior Court *711tbe sum of $50 per month, beginning 1 April, 1922, until the further order of the court, to be applied to the maintenance of his infant children,” and the costs.
¶5It does not appear that the defendant was without means, and presumably he was not, for it appears in the record that he has been sheriff of his county, but if he had been, it would have been (C. S., 4449) in the discretion of the judge to make such order for the support of the children “from the property or labor of the defendant,” as it was imperatively the duty of the defendant to providé for them.
¶6This statute does not prohibit this proceeding in favor of the children unless his wife has been included, especially is this so when he has no wife. The language of the statute is, “without providing adequate support for the wife and the children.” When such proceedings have been taken out for nonsupport of a wife it has never been thought a defense that she had no children. Nor can it be reasonably construed that this proceeding cannot compel the defendant to aid in the support of his children because he has no wife. The rule should work both ways. The object is to enforce adequate support for the wife and children, and if there is no wife, the proceeding none the less will lie in favor of the children, and if there are no children, it still lies in favor of the wife. It is an immaterial circumstance whether the defendant has lost his wife by death, or by divorce, as in this ease. The object of the statute is to secure support for the wife and children, or for either. The abandonment is only an aggravation of the offense. Any other construction would make the statute a nullity except in cases where the defendant has both wife and children.
¶7In S. v. Kerby, 110 N. C., 558, it was held that it was intended to procure the support of the children as well as for the wife, and that the offense was complete when there was a failure to support the children only, though in that case the defendant had a wife at the time the offense was committed.
¶8It was contended for the defendant that the offense of leaving these children without adequate support was barred by the statute of limitations; as if a statute could run against these four helpless little beings, for whose protection, with all others in like condition, the statute was provided. It is true it has been held in some decisions that abandonment was the act to be punished, and, therefore,. the statute began to run from that time, and the defendant was protected by the lapse of two years. If there was any validity in that defense as to the wife, who was presumably of age, and whose acquiescence for two years might be a waiver, this certainly could not avail as against these four little girls from 2 to 8 years of age when first abandoned. The statute could not run against them.
¶9*712But with, all respect to the precedent, S. v. Davis, 79 N. C., 603, that held that the statute rims from the abandonment, it would seem that a reasonable construction of the intent of the Legislature, as evidenced by C. S., 4449, was not to punish the act of abandonment, for which no punishment is prescribed, but the intent was a judgment requiring the husband, or father, as the case might be, to furnish adequate support out of his estate, if he had any, and if not, by his labor, and that where there has been a failure to support, as in this case, within two years prior to the institution of this proceeding, the action is not barred, certainly not against minor children. They have had no day in court, and have had no opportunity.
¶10In S. v. Davis, supra,it was held that this was not a continuing offense. But that was a case where the abandonment was of the wife only who might be presumed possibly to have waived prosecution by delay for two years; but even in that case the court was quick to say that if the husband subsequently made a promise within the two years to support the wife, the failure to perform such promise constituted a fresh abandonment and sustained the indictment found within two years after such failure. If that ease is a precedent for the first proposition, it is equally so for the second.
¶11In S. v. Hannon, 168 N. C., 216, where the husband had abandoned his wife something over three years before the bill found, but within two years he gave her $5 for her support and promised to return and to furnish a house for her, which he did not do, it was held sufficient breach of his marital duty to support an indictment upon the second promise. The Court said that “the promise of renewal of association on the part of the husband and payment of $5 towards her support would amount to a renewal of the obligation, and on a subsequent failure within the two years an indictment would lie,” citing with approval S. v. Davis, 79 N. C., 603. In S. v. Beam, 181 N. C., 597, where there was a second abandonment, the Court held that the husband leaving the wife the second time without furnishing any support within two years was not barred by the statute of limitations.
¶12If the statute of limitations could run against these little children (for the mother is not a party to this proceeding, and, indeed, the defendant had no wife when the warrant was sworn out or the indictment found), still, even in that view, this defendant cannot avail himself of the bar of the statute, for in this case the abandonment of the wife took place about 1 June, 1919, but afterwards, and within two years of the swearing out of the warrant in this case, on 30 December, 1921, the defendant executed a deed on 1 December, 1920, to R. S. McCoin, as trustee, jointly with his divorced wife, in which they both conveyed their interest in certain property to the trustee with authority to manage *713tbe same, beep it in good condition, and out of tbe proceeds of said trust fund should pay $200 a month for the support of the divorced wife and the necessary expenses of the children and their schooling. This fund proved inadequate, and the children have been left without any support whatever.
¶13The trustee, Mr. McCoin, also testified that in the fall of 1921, after he had been made trustee and found the fund insufficient, he met the defendant on the street and asked him to contribute something to the expenses of one of the children in the hospital. The defendant said he would do what he could for his children, adding that he was going to Raleigh and would see about a $200 over-payment which he had made in settling as sheriff his taxes with the State; that he would send that, and also would send him a list of parties whose taxes he had paid but had not collected, and that the trustee (McCoin) might collect that for the children. He also, within the two years, on Christmas, 1920, sent the children a pony for riding and several small presents.
¶14The deed in trust, the promise to McCoin, trustee, and the sending of the pony and other articles were all done within two years prior to the beginning of this action and his subsequent total abandonment of his children without any support constitutes an offense, and in any view prevents the bar of the statute of limitations. S. v. Davis, supra; S. v. Harmon, supra.
¶15His legal and moral duty was a sufficient consideration for the promise he made, within the two years, to McCoin to send check and other aid for the support of his little girls.
¶16This Court held, in Sanders v. Sanders, 167 N. C., 319 : “There can be no controversy that the father is under the legal as well as a moral duty to support his infant children. Walker v. Crowder, 37 N. C., 487,” and whether they have property or not. Haglar v. McCombs, 66 N. C., 345.
¶17The defendant did not put on any evidence to deny that he had left his four little girls, aged from 4 to 10, without any support whatever, neither for food, clothing, shelter, or schooling. But his counsel insists that he is protected from liability because when these children were still younger, i. e., 2 to 8 years of age, they had allowed two years to elapse without talcing any steps to force him to provide for them. I do not think that this can be the law in North Carolina.
¶18In 20 R. C. L., 622, sec. 30, it is said: “Correlative to the father’s right to the custody, control, and earnings of his minor child is his duty to support such child. This duty is recognized and discharged even by the higher orders of the animal world, and it would seem to be prescribed as to the human father by the most elementary principles of civilization as well as of law. It was held in some early American *714eases, supported by eminent English authority, that There is no legal obligation on a parent to maintain his child,’ unless by force of some statute. But this doctrine, admitted to seem startling and opposed to the innate sense of justice by the court which gave to it its first American support, has been repudiated by the great majority of American courts”; and here follows a long list of decisions, the only case cited to the contrary being an early New Hampshire case.
¶19The law is thus stated, 8 R. C. L., 307, sec. 332: “The crime of nonsupport is a continuing one, as the duty to support is continuing, and the breach of it may be stated as having occurred at the moment of desertion or at any time during the continuance of the willful neglect to support.” Certainly where the failure to support is only as to the children, who .at its commencement were from 2 to 8 years of age, and the husband, as in this case, renewed his promise to support them within the two years and has failed to comply, the statute of limitations cannot be a bar as to these children.
¶20The verdict of the jury and the judgment of the court that the defendant pay $50 per month for the support of his four children was just and righteous altogether, and in accordance with the language as well as the clear intent of our statute.
¶21Indeed, the single case that holds that neglect to support the children is “not a continuing duty,” and hence acquiescence for 2 years by them is a-bar to any liability, should be overruled. In its very nature support is a “continuing duty.” 8 R. C. L., 307. It is violated the very first day that the father fails to discharge it, and each succeeding day thereafter is an aggravation and not a defense. Under our rule as to the statute of limitations in misdemeanors, the defendant cannot be held guilty for acts of abandonment and nonsupport committed more than two years before proceedings began, but for those committed within two years. But if this is to be reversed, and by calling it “not a continuing offense” (for which there is no intimation in the statute), still the promise to McCoin and the gifts to the children, made within two years before this action was begun, deprives the defendant of relying upon the defense that he had also been guilty before the two years.
¶22dissenting: I should be content with the judgment of the majority in this case if I did not feel that the present decision is vio-lative of the rule of strict construction, as it relates to the interpretation of criminal statutes, and further, that .it is in conflict with a number of our previous decisions. The duties of a husband are quite different from those of a father, and it would seem that a penal statute directed against the one ought not to be held to include the other, unless the *715Legislature so declare. A man may be a husband and yet not a father; or, like J. E. C. Bell, he may be a father and not now a husband.
¶23But it is stated in the opinion of the Court that the statute should be construed as if it contained other words than those incorporated therein, and then the observation is made that the conclusion reached is the rational and reasonable one. Maybe so; but to my mind this conviction cannot be sustained without giving a strained construction to a criminal statute, and further, by adding additional words thereto, by way of “judicial legislation.” Both of these methods, however, seem to have been employed, in the instant case, in a manner and fashion satisfactory to a majority of the Court.
¶24The present prosecution is based upon an indictment charging the defendant with willfully abandoning his wife without providing adequately for her support, and for the support of their four minor children, as condemned by C. S., 4447. There is also a count in the bill charging the defendant with a violation of C. S., 4450, in that, while living with his wife, he willfully neglected to provide adequate support for the children which he had begotten upon her. But as the evidence was not sufficient to support this latter charge, it need not be considered. S. v. Kerby, 110 N. C., 558. He was convicted under the first count.
¶25In addition to the above, there was a third count in the bill to the effect that in July, 1920, the defendant “unlawfully and willfully did abandon his children, viz.: Mary Baxter Bell, Ellen Bell, Mabel Bell, and Josephine Bell, without providing adequate support for said children, against the form of the statute in such cases made and provided, and against the peace and dignity of the State.” With respect to this charge, I am unable to find any statute in North Carolina making the alleged offense criminal, unless C. S., 4447, was intended to do so. The language of this statute is as follows: “If any husband shall willfully 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.” Here, it will be observed, two things are necessary to be shown, and they must concur in order to render the husband liable to indictment, to wit: (1) a willful abandonment of the wife; and (2) a failure to provide “adequate support for such wife, and the children which he may have begotten upon her.” S. v. Toney, 162 N. C., 635. Of course, the offense may be committed where there are no children, but it would seem to be otherwise where there is no wife. The abandonment of the wife is the act of abandonment here condemned, and not that of the children. The statute provides that the charge may be preferred against any offending husband, not father. “If any husband shall willfully abandon his wife,” etc., is the language used.
¶26*716But it is said that a contrary meaning was intended, as appears from the caption of this section, which is as follows: “Abandonment of family by husband.” Where the meaning of a statute is doubtful, its title may be called in aid of construction (Freight Discrimination Cases, 95 N. C., 434) ; but the caption cannot control when the meaning of the text is clear. In re Chisholm’s Will, 176 N. C., 211, and eases there cited. Especially is this true where the headings of sections have been prepared by compilers and not by the Legislature itself. Cram v. Cram, 116 N. C., 288. Moreover, it does not appear that the instant caption imports a meaning contrary to the body of the text. The abandonment mentioned is to be by the “husband”; and a husband is a man who has a wife.
¶27It was not an indictable offense at common law for a father to abandon his children, nor was it a crime for a husband to desert his wife. The basis of the entire prosecution we are now considering is purely statutory. 13 R. 0. L., 1191. It was not known or recognized at the common law, and hence we must look to the enactments of the Legislature to determine the lawfulness or unlawfulness of the offense charged. 21 Cyc., 1611. A careful reading of the above section convinces me that this third count is not included within its terms. Furthermore, it is quite evident that such was not the purpose and intent of the lawmaking body. The provisions of 0. S., 4450, would seem to indicate a different policy, or a contrary legislative intent. This section reads as follows: “If any husband, while living with his wife, shall willfully neglect to provide adequate support for such wife, or the children which he has begotten upon her, he shall be guilty of a misdemeanor.”
¶28It will be noted that, in one' section, the willful abandonment of the wife without providing adequate support for such wife, and the children begotten upon her, is the offense condemned; while in the other, the willful neglect, while living with the wife, to provide adequate support for such wife or the children begotten upon her is made a misdemeanor. The two statutes are quite different, and, on a proper perusal, I think it is apparent that both were drawn with studied care and precision. Note, also, that C. S., 4449, by express terms, has no application unless and until there has been a conviction under the prior statute, and the same may be said of Public Laws 1921, ch. 103.
¶29It may be stated, however, that the defendant was not prosecuted on this third count in the court below. The case was tried on another theory. The State offered evidence tending to show that in June, 1919, the defendant abandoned his wife without providing adequate support for her and their four minor children. The defendant offered no evidence, but contented himself with the plea that the prosecution was barred by the statute of limitations. This was the only question con*717sidered on tbe trial; and, of course, if tbe defendant bad been tried on. tbe third count in tbe bill, and it were valid, tbe plea of tbe statute of limitations could bave availed bim nothing under tbe facts of tbe instant case.
¶30Tbe offense charged under C. S., 4447, and of which tbe defendant was convicted, is a misdemeanor. It occurred on or about 1 June, 1919, according to tbe State’s evidence. Tbe defendant was arrested 5 January, 1922, and tried at tbe March Term, 1922, of Yance Superior Court. Tbe only question presented for our consideration on this appeal is tbe validity of tbe defendant’s plea of tbe two-year statute of limitations, 0. S., 4512.
¶31As early as 1878, in the case of S. v. Davis, 79 N. C., 603, tbe following was declared to be tbe law of this jurisdiction: “It is tbe act of abandonment and failure to support that constitute tbe offense. Tbe first offense was in 1873, and is barred by tbe statute of limitations. It is not a continuing offense by reason of tbe continued separation; so that tbe question is whether there was a second offense in tbe latter part of tbe year 1877.” To like effect were tbe decisions in S. v. Dunston, 78 N. C., 420, and S. v. Deaton, 65 N. C., 496. And such was recognized to be the law, as it obtains with us, in a well considered opinion by Associate Justice Walker in tbe recent case of S. v. Beam, 181 N. C., 597.
¶32In order to repel tbe plea of tbe statute of limitations, tbe State offered evidence tending to show: (1) that tbe defendant sent bis children a pony for a Christmas present in December, 1920; (2) that tbe following Christmas, 1921, be sent bis oldest girl a book, two of bis other children a basket, and tbe smallest one a doll; (3) that on 1 December, 1920, tbe prosecutrix, Mrs. Bell, who bad inherited some property from her father and mother, executed a deed of trust conveying her said inheritance to E. S. McCoin, trustee, for tbe use and benefit of herself and her four minor children, in which said deed of trust tbe defendant joined on 9 December, 1920, tbe same having been sent to bim for bis signature in Beaufort County, N. C., where be then resided; (4) that in tbe fall of 1921 tbe defendant promised E. S. McCoin, who was then acting as trustee of Mrs. Bell’s property, to send bim a check of $200 to be used in paying tbe hospital bill of one of bis children. This be never did; and at tbe time of bis conversation and promise to McCoin, be expressly stated that “be wouldn’t contribute anything to Mabel (Mrs. Bell), but be wanted to do what be could for tbe children.”
¶33It is contended by tbe State that tbe foregoing acts of tbe defendant, committed, as they were, within two years of tbe finding of tbe bill of indictment, take tbe case from under tbe bar of tbe statute, and, for this position, the decision in S. v. Davis, supra,is cited as an authority. It *718will be noted, however, that in Davis’s case, supra, there was a promise to provide for the wife’s support, which amounted to a recognition of the marital obligations, and this promise was actually carried out for a period of two weeks. A refusal then on the part of the defendant to continue to support his wife and child was held to be a second offense, or a fresh act of abandonment and failure to support within the meaning of the statute.
¶34But in the case at bar Mrs. Bell had obtained an absolute divorce from the defendant in the spring of 1921, long before the defendant’s conversation with McCoin, and before his Christmas gift to the children in 1921. Hence, the only acts done by the defendant within the period of the statute, and while the bonds of matrimony were still subsisting between the prosecutrix and himself, were the giving of the pony as a Christmas present to the children in 1920, and the consenting to the placing of his wife’s property in trust by joining in the deed which had been sent to him for his signature. This was not sufficient to take the case out of the statute and start it to running anew. Neither of these acts, nor the two combined, under the circumstances of the instant case, could hardly be said to partake of the substance of adequate support. The former was intended only as an act of kindness, being a Christmas gift to the children, and the latter was a mere legal formality. Furthermore, two elements are necessary to constitute the offense here charged, namely, willful abandonment of the wife and failure to provide adequate support. Such has been the direct holding in at least three cases: S. v. Smith, 164 N. C., 479; S. v. Toney, 162 N. C., 635, and S. v. May, 132 N. C., 1021.
¶35The State also relies upon the decision in S. v. Hannon, 168 N. C., 215. But in that case there was not only a promise made to the wife to provide support within the statutory period, but an actual resumption of the marital relations; and what is said in an opinion should always be considered in connection with the facts of the case in which it is delivered. “Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered.” Marshall, C. J., in U. S. v. Burr, 4 Cr., 470.
¶36The civil liability or obligation devolving upon the defendant to support his minor children is not before us for consideration. Sanders v. Sanders, 167 N. C., 319. Nor are we called upon to say whether such conduct as here disclosed should be made criminal. We can only declare the law as we find it, and the courts are not at liberty to extend the terms of a penal statute, by implication or otherwise, to include eases not clearly within its meaning. In other words, the rule of strict construction prevails. S. v. Falkner, 182 N. C., 795. There is nothing on the present record to show what order, if any, was made with respect *719to tbe care and custody of tbe defendant’s minor children in tbe divorce proceedings, brought by bis wife in tbe spring of 1921; but from what is now apparent it would seem that tbe civil right of these children to call upon tbe defendant for support is still subsisting, and certainly it is not impaired by tbe lapse of time. Sanders v. Sanders, supra.They are evidently living with their mother, but it does not appear that she has been awarded their custody by order of court, or otherwise.
¶37The unfortunate and pathetic circumstances here disclosed, especially in the absence of any exculpating testimony, may have a strong tendency to excite sympathy for the minor children, on the one hand, and to elicit criticism of the defendant on the other, but it behooves us to bear in mind the fact that neither partisan advocacy nor sharp invective should find a place, or even support, in a calm, judicial opinion; and further, it should be remembered that we are engaged in “running the base line” here, with square and plumb, or needle and compass, as it were, and hence it is not permissible for us to “stretch” the criminal law, by equitable construction or otherwise, to include cases not expressly covered by the statute. "We must hew to the line and let the chips fall wherever they may. And though we may think the law ought to be otherwise, this should not blind our judgment to what it really is. The duty of legislation rests with another department of the Government. It is ours only to declare the law, not to make it. Moore v. Jones, 76 N. C., 187. The people of North Carolina have ordained in their Constitution (Art. I, sec. 8) that the legislative, executive, and supreme judicial powers of the Government should be and ought to remain forever separate and distinct from each other. Such is their expressed will, and from the earliest period in our history they have endeavored with sedulous care to guard this great principle of the separation of the powers. In this country those who make the laws determine their expediency and wisdom, but they do not administer them. The chief magistrate who executes them is not allowed to judge them. To another tribunal is given the authority to pass upon their validity and constitutionality, “to the end that it be a government of laws and not of men.” From this unique political division results our elaborate system of checks and balances — a complication and refinement which repudiates all hereditary tendencies and makes the law supreme. In short, it is one of the distinct American contributions to the science of government; and the judiciary — the department of trial and judgment — of all others, without hesitation or turning, should hold fast to the basic principle upon which this Government is founded. The courts are vested with judicial powers only, and it is no part of their function to change or to amend the criminal statutes enacted by the Legislature. On the other hand, the universal rule is that such statutes are to be construed strictly.
¶38*720In recognition and support of this well established formula, there must be some uniformity in judicial decisions, when dealing with a given subject, or else, the law itself, the very chart by which we are sailing, will become as unstable and uncertain as the shifting sands of the sea — a condition which, all must agree, would be intolerable and destructive of the only enduring foundation upon which the present and future hope of this Government of laws and not of men must be builded and sustained.
¶39The identical law which this Court has heretofore declared to be applicable in such cases is now invoked by the defendant for his protection. He relies upon a statute of repose and the stability of our decisions. With assured confidence, he stands at the bar and asks that the same law which is administered to others shall be administered to him. The righteousness of this position can hardly be denied by a great State which has vouchsafed to every person within its borders even-handed justice and the equal protection of the laws.
¶40It is not every abandonment that is made criminal by the statute as enacted by the Legislature. In the first place, the act of abandonment must be willful, or without just cause, excuse, or justification, which is more than a mere separation (S. v. Falkner, 182 N. C., 793); and this must be accompanied by a failure to provide adequate support for such abandoned wife and the children which the defendant may have begotten upon her, whether born in lawful wedlock or not. But this would not include the children of any other marriage or cohabitation. The children are referred to only in connection with the adequacy of support for the abandoned wife, and then only those which the defendant may have begotten upon her. But it is stated in the opinion of the Court that the statute should be construed as if it were framed in the following language: “If any husband shall willfully abandon his wife without providing adequate support for such wife, he shall be guilty of a misdemeanor, and if he shall willfully abandon the children which he may have begotten upon her without providing adeqúate support for such children, he shall be guilty of a misdemeanor.” Here, it will be observed, in the revised statement of the statute, as rewritten by the Court, the words “which he may have begotten upon her” are meaningless unless they refer to the children which the defendant may have begotten upon his abandoned wife. Manifestly, if there be no abandoned wife, there can be no such children. On the other hand, if these words, as here used by the Court, are to be interpreted as meaning legitimate children' — and they could be construed to mean illegitimate children just as well, for “her,” a pronoun, without an antecedent noun to represent, would be a prodigal term — then the act of the Legislature has *721been entirely changed. The courts are treading on dangerous ground when they begin the practice of rewriting criminal statutes.
¶41If this defendant were indicted and stood convicted of a capital felony, it could hardly be conceived that the present interpretation of the statute would be permitted to stand for a moment, and yet the same rule of strict construction which is to be observed in interpreting statutes dealing with the more serious offenses applies equally to those having to do with crimes of a lesser magnitude. It were better that the Legislature should be given an opportunity to declare the law more explicitly than that we should depart from the settled rule in matters of this kind, which has been approved by the wisdom of the ages.
¶42Let there be no misunderstanding. I am not defending or offering any excuse for the conduct of the defendant here. It may have been highly reprehensible, and doubtless it was, but my concern is with a far more serious question, and one which involves the policy of the Court in dealing with the rights and liberties of our citizens. If we are to amend this statute, where is such practice to end or to be stopped! I can find no authority or license for its use in this instance.
¶43My position is simply this: The only wife mentioned in the statute is the wife which the defendant husband has willfully abandoned. The only children mentioned in the statute are those which the defendant husband may have begotten upon his abandoned wife, and none other. Clearly, if no wife has been abandoned, there can be no children of “such wife.” Furthermore, the children are mentioned only in connection with the adequacy of support for the abandoned wife. This interpretation is supported and fortified by the language used in C. S., 4450, a cognate statute. In reply to this, I am met with the statement that the law ought to be otherwise. Possibly so, but that is a matter for the Legislature. With all due deference, I think the punitory judgment pronounced herein should be withheld and the parties allowed to proceed in a civil action, as already suggested, if so advised.