32 N.C. 369 | N.C. | 1849
The record contains two exceptions on the part of the State to the admission of evidence offered by the defendant. The first was as to the written assent given by the mother, which was received to rebut the allegation of secrecy. The other was as to the evidence of the defendant's continued residence in other parts of the State besides Person, and of the notoriety of the marriage, and of the defendant preaching publicly in counties adjoining Person.
The guilt of the defendant in contracting marriage with a female of tender years, contrary to the statute, seems to be established. Indeed, it was not contested. Supposing the indictment sufficiently states the corpus delicti, without averring that the father had not given his consent in writing, as well as his death, the Court is of opinion the judgment was properly rendered for the defendant upon the special verdict, by force of the act limiting the time in which prosecutions for trespasses and misdemeanors shall be commenced. Two years from the commission of the offense is the period prescribed; and the grand jury is forbidden to find an indictment where the offense was committed longer than that period before the bill found. That is subject to two provisos: the one, that if the offender shall abscond from the county in which the offense was committed, or conceal himself, or the offense shall be (373) committed in a secret manner, then the two years are allowed for the return or apprehension of the offender or the discovery of the offense; and the second, that when a prosecution *269 shall be commenced in due time, and judgment shall be arrested or a nolleprosequi be entered, the two years shall be computed from the termination of the first prosecution.
It is to be remarked, in the first place, that, as seventeen years elapsed between the offense committed and the bill found, the prosecution is barred unless the special verdict finds the facts which, according to the provisos, remove or suspend the bar arising from the time. Here that is not done, for the verdict sets forth divers matters of evidence from which it was argued and inferred that the marriage was secret, and that the defendant absconded or concealed himself, instead of finding directly, as it should have done, the secrecy, absconding, or concealment. It is common learning that a verdict is defective which finds only the evidence, since the court cannot draw inferences of fact, but only apply the law to facts agreed or found. To authorize judgment for the State, therefore, on the verdict, it ought to have contained direct findings of the necessary facts.
But the case, as we think, is for the defendant, not merely upon the ground of the defects above spoken of, in the frame of the special verdict, but also because, in truth, the evidence spread out in the verdict would not, in point of law, authorize the finding of either of the necessary facts of secrecy, absconding, or concealment. Probably the principle of construction which was applied to the severe statute of 21 Jac. I (making it evidence of murder in the mother of a bastard to conceal its death by secret burying), whereby the case was taken out of the enactment if the mother called for help, or confessed herself with child to even one person, ought not to be adopted in interpreting the terms "secret" and "conceal" in this act. But we hold very clearly that this marriage cannot be (374) deemed secret — celebrated as it was, with the knowledge of the feme's mother and in the presence of her uncle and other near kinsfolk and other persons to the number of seven at least, and by a minister of the gospel, with license regularly granted, and, of course, appearing of record. There is a case in point. It is Hicks v. Gore, 3 Mod., 84, founded on the statute of 4 and 5 Ph. and M., ch. 8, to prevent children from being seduced from their parents and married in a secret way; and it was held that a marriage, openly solemnized in church in canonical hours, in the presence of many persons, was not within the act. This case is cited with approbation by Mr. East, 1 Cr. L., 457. This marriage was not only solemnized openly, but was immediately declared to the friends of the wife and the public generally, and was not only notorious from such declarations, but the parties cohabited and were generally known *270 as man and wife. There is, moreover, not a circumstance of concealment by the offender, more than there is of secrecy in the offense. He always appeared openly in society, and, as a preacher in a numerous denomination, often exhibited himself, in company with his wife, to large assemblages of the members of his church and others. It is true, he left the county of Person on the day of his marriage, but not as a fugitive, or to the intent to escape public observation or evade the process of the law. On the contrary, he left Person to return to the settled place of residence both of himself and his wife; and, besides, habitually met citizens of that county at his church, and during two years frequently passed through the county, preached in it, and visited and sojourned there.
It was, however, said at the bar that the policy of the act of 1820 forbids a limitation on a prosecution for the marriage, as the consequence will generally be that all the benefits intended for the seduced wife and her issue will be lost. (375) It may, indeed, often happen that the husband will acquire all the rights in his wife's property which he would have had if he had not violated the law, since the act is so framed that the Court has been obliged to hold in Shutt v. Carloss,
It is unnecessary to say anything upon the exceptions to the admission of the evidence, since, if it were wrong, the judgment could not be reversed, inasmuch as the State cannot have a venire de novo, except for a mistrial, technically speaking, nor have an appeal, except where the court below improperly refuses to give a judgment for the State upon a general or special verdict. *271
It is, perhaps, proper that some notice should be taken of the introduction of averments into the indictment, with the view of taking the case out of the statute of limitations by bringing it within the proviso. We think it unnecessary and inconvenient. The act does not require a change in the frame (376) of the indictments; and this is the first instance in which such averments have come under our observation. As the accused, according to the general rule, may avail himself of the statute on not guilty, and without a special plea, it follows that his defense may in like manner be repelled on the part of the State. It is not like a provision in a statute which enters into the description of an offense, and must, therefore, appear in the indictment. But it is matter of defense arising out of an independent enactment, on which the defendant may insist, upon evidence; and that opens the matter to the State without any express averment. It is true, the indictment lays the offense more than two years before this bill found. But that cannot alter the rule, because it cannot be told but that the defendant absconded or concealed himself, or that another prosecution was brought in due time so as to authorize a second bill under the second proviso; and as the defendant could insist on the time in defense, it is to be presumed, after a conviction by general verdict, that the case was brought within the proviso. This, indeed, does not affect the present case, in which, for the other reasons already stated, the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: S. v. Christianbury,
(377)
