116 N.C. 1052 | N.C. | 1895
The Code, Section 1177, excepts from the two years statute of limitation, perjury, forgery, malicious misdemeanors and deceit. There has never been such an indictable offence as “ deceit ” but the meaning of this section has always been that misdemeanors, the gist of which was malice or deceit, are within the exception. In State v. Christianbury, 44 N. C., 46, it was held that there being no such offence as “ deceit ” it would apply to “ cheating by
The Attorney General properly conceded that this crime would not have come under the other exception in this section “ offences committed in a secret manner.” That clearly applies to crimes committed in such manner that the offender is unknown to the person injured.
The Act of 1891, Oh. 205, defining felonies and misdemeanors, makes this offence, if committed since the act, a felony as to which there is no statute of limitation. But that act does not apply to this offence which was committed prior to its enactment.
When there is a prayer to put the charge in writing the entire charge must be written. State v. Young, 111 N. C., 715; but as was said by Smith, C. J., in Currie v. Clark,
Nor was there error in refusing to give the definition of an innocent and virtuous woman asked by the defendant. The law loplcs at conduct, and motive only as shown by conduct, and not at thoughts undisclosed and natural impulses not acted on. The precedents sustain the definition given by the Court that an innocent and virtuous woman is- one “ who lias never had illicit intercourse with any man and who is chaste and pure.” State v. Ferguson, 107 N. C., 841. The Court properly refused to go farther and charge that the prosecutrix must have had “ a mind free from lustful and lascivious desires.”
The Court erred, however, in imposing both fine and imprisonment. The Act (1885, Ch. 248) provides that the defendant upon conviction of this offence “ shall be fined or imprisoned at the discretion of the Court and may be imprisoned in the penitentiary not exceeding five years.” The disjunctive “or” cannot be construed “and” in a criminal statute when the effect is to aggravate the offence or increase the punishment. State v. Walters, 97 N. C., 489. The latter part of the clause “and may be imprisoned in the penitentiary,” &e., means “and if the alternative of impris-
This, however, does not entitle the defendant to a new trial but the case will be remanded that sentence may be imposed at the next term of Catawba Superior Court in conformity to this opinion. State v. Walters, supra; State v. Lawrence, 81 N. C., 522; State v. Queen, 91 N. C., 659. The verdict stands. Iiis Honor holding the Court below will in the exercise of his discretion, within the limits allowed by law, impose either fine or imprisonment.
Error. Remanded.