State v. . Sauls
130 S.E. 848
N.C.
1925
Check Treatment
Adams, J.

Though punishable by tbe ecclesiastical courts of England as an offense against good morals, incest was not indictable at common law. It was made a felony in this State by tbe act of 1879. C. S., 4337, 4338; S. v. Keesler, 78 N. C., 469; S. v. Gutshall, 109 N. C., 764, 774; S. v. Brittain, 117 N. C., 783. As it is of statutory origin an indictment therefor must charge a crime substantially within tbe terms of tbe statute. Tbe act denounced as a felony is carnal intercourse between grandparent and grandchild, parent and child, and brother and sister of tbe half or whole blood. Sec. 4337. Tbe word “carnal” as qualifying tbe word “intercourse” was omitted from tbe indictment, and upon this ground tbe defendant in apt time moved to quash tbe bill and excepted to tbe denial of bis motion.

In our criminal procedure it is provided tbat every indictment shall- be sufficient in form for all intents and purposes if it express tbe charge against tbe defendant in a plain, intelligible, and explicit manner, and tbat it shall not be quashed by reason of any informality or refinement if sufficient matter appear therein to enable tbe court to proceed to judgment. C. S., 4623. Tbe indictment, construed in tbe light of this statute, need not charge carnal intercourse in express words; it is sufficient if other language of equivalent import is used. In preparing tbe bill tbe draftsman used equivalent languáge. Webster defines incest as “tbe crime of cohabitation or sexual commerce between persons related w-itbin tbe degrees wherein marriage is prohibited by law,” and “incestuous” as “guilty of incest.” Worcester and Tbe Century Dictionary give substantially tbe same definition. Incestuous intercourse'is essen *812 tially carnal intercourse. While the precise question has not been decided here, indictments charging “incestuous intercourse” have been sustained in other states. S. v. Learned, 85 Pac. (Kan.), 293; Hintz v. State, 17 N. W. (Wis.), 639; Mercer v. State, 92 So. (Fla.), 535; S. v. Morgan, 176 N. W. (S. D.), 35; S. v. Dana, 10 At. (Vt;), 727; Baker v. State, 30 Ala., 521. The crime was charged in a plain, intelligible, and explicit manner not easily to be misunderstood by the defendant. We think there was no error in denying the motion to quash the indictment.

The jury-were instructed to “scrutinize the evidence of the defendant and that of all his close relatives before accepting it as true,” and the defendant excepted because the instruction was not extended and applied to all interested witnesses. The exception must be overruled. In S. v. O’Neal, 187 N. C., 22, it is said: “Instruction to scrutinize the testimony of a witness on the ground of interest or bias is a subordinate and not a substantive feature of the trial, and the judge’s failure to caution the jury with respect to the prejudice, partiality, or inclination of a witness will not generally be held for reversible error unless there be a request for such instruction.”

There is another exception which demands consideration. The defendant was arrested on 15 May, 1925, at 9 :30 a. m., on a warrant charging him with an assault on a female person (O. S., 4215) ; and at one o’clock on the same day the grand jury returned three indictments against him, two of them charging an assault, the other charging incest. The defendant, having been brought into court, stated that he had not been able to secure and confer with counsel and was not ready for trial; and the judge said he would continue the case either to the night session or until the next morning. The defendant replied that he would try to get ready for trial at the night session. The court convened at 7 :30 p. m. and the defendant filed an affidavit and made a motion for continuance, alleging that immediately upon his arrest in the morning he had been confined in jail, had not been informed of the nature of the, chafge against him until one o’clock, had not been able to confer with counsel at all until 4:30 p. m. and then not satisfactorily, and that certain witnesses were necessary for his defense. The motion was denied and an exception was duly entered.

It is earnestly insisted by the defendant that he was denied his constitutional rights (Art. I, secs. 11, 17) and in any event that the refusal to grant his motion was such an abuse of discretion as entitles him to a new trial.

We are unable to see in what respect the defendant’s constitutional rights were denied him unless by the judge’s refusal to grant the continuance. The exception, then, finally depends on the question whether *813 there was an abuse of discretion, and that is really the position that was taken on the argument.

In Armstrong v. Wright, 8 N. C., 93, Henderson, J., said: “The very act of vesting a discretionary power proves that the subject-matter depends on such a variety of circumstances, where each shade may make a difference, that it is impossible to prescribe any fixed rules or laws by which the subject can be regulated. And, although it be said that a sound discretion means a legal discretion, yet when we ask what the legal discretion is, we are as much at a loss as we were before the definition to declare the rules or laws by which the discretion shall be regulated. To prescribe fixed rules for discretion is at once to destroy it. This opinion is very much supported by the practice in England. I do not know a single case where any decision depending on discretionary power has been the subject of a writ of error, and I think that the power of this Court to correct errors in law extends not to those errors which may be committed in the exercise of a discretion, but only to those where the fixed and certain rules, emphatically called laws, are mistaken.”

It was subsequently held in a number of decisions that the refusal to continue a case rests in the judge’s discretion upon matters of fact which this Court has no power to review. S. v. Duncan, 28 N. C., 98; S. v. Collins, 70 N. C., 242; Austin v. Clarke, 70 N. C., 458; Moore v. Dickson, 74 N. C., 423; S. v. Lindsey, 78 N. C., 499; S. v. Scott, 80 N. C., 366; Henry v. Cannon, 86 N. C., 24; Dupree v. Ins. Co., 92 N. C., 418; S. v. Pankey, 104 N. C., 841; Banks v. Mfg. Co., 108 N. C., 282; S. v. Hunter, 143 N. C., 607.

In other cases it is held that while the exercise of discretion must be judicial and not arbitrary it is not subject to review unless “the circumstances prove beyond doubt hardship and injustice” (Moore v. Dickson, supra); or “palpable abuse” (McCurry v. McCurry, 82 N. C., 296; Slingluff v. Hall, 124 N. C., 397); or “gross abuse” .(S. v. Blackley, 138 N. C., 620; S. v. Dewey, 139 N. C., 557; S. v. R. R., 145 N. C., 495; S. v. Burney, 162 N. C., 614). In Hensley v. Furniture Co., 164 N. C., 149, Mr. Justice Walker expressed the Court’s conclusion in this language: “Judicial discretion, said Coke, is never exercised to give effect to the mere will of the judge, but to the will of the law. The judge’s proper function, when using it, is to discern according to law what is just in the premises. ‘Discernere per legem quid sit justum.’ Osborn v. Bank, 9 Wheat., 738. WHben applied to a court of justice, said Lord Mansfield, discretion means sound discretion guided by .law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful, but legal and regular. 4 Burrows, 2539. While the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound and enlightened *814 judgment, in an effort.to attain tbe end of all law, namely, tbe doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited. We do not interfere unless' tbe discretion is abused. Jarret v. Trunk Co., 142 N. C., 466.” And in S. v. Riley, 188 N. C., 72, Chief Justice Hoke said: “Defendants excepted, first, that they were ruled to a trial of tbe cause at tbe same term tbe bill of indictment was.found and so soon after tbe alleged theft that they were, in effect, denied tbe right to obtain necessary evidence; but our decisions' are to tbe effect'that this is a matter within tbe discretion of tbe trial judge and not -the basis of a valid exception, unless there has been manifest abuse, and, on tbe facts presented, we are- of opinion that no such abuse has been made to appear. S. v. Burnett, 184 N. C., 783; S. v. Sultan, 142 N. C., 569.” See, also, S. v. English, 164 N. C., 498.

One reason for Mr. Justice Walker’s statement that the trial judged discretion is “practically unlimited” may be found in tbe following language of Chief Justice Ruffin: “It is tbe province of tbe court in which tbe trial takes place to judge of tbe truth or sufficiency of the causes assigned for a motion for a continuance or removal of a trial. It must be so; else it would be in tbe power of a prisoner to- postpone a conviction indefinitely, however clear bis guilt, by making affidavits with tbe requisite matter on tbe face of them.”

Tbe modern application of tbe rule has thus been summarized: When tbe discretion of tbe trial judge is exercised with a reasonable degree of judicial acumen and fairness, it is one which tbe higher -courts are loth to review or to disturb. Tbe mere fact that tbe case was disposed of with unusual dispatch is not an ear mark of error. Tbe presiding judge must be to a certain extent free to secure a speedy and expeditious trial, when such speed and expedition are not inconsistent with fairness. While it is not necessary, to constitute abuse, that the court shall act wickedly or with intentional unfairness, it is essential to show tbe commission of a clear or palpable error, without tbe correction of- which manifest injustice will be done. Familiar with all tbe attendant circumstances tbe judge has tbe best opportunity of forming a correct opinion upon tbe case presented and has tbe benefit of a presumption in favor of bis action. 16 C. J., 452, sec. 822 (2).

So far as we may determine from tbe record an order of continuance would not have been subject to legitimate criticism, but we have not discovered such an abuse of discretion as results in a denial of tbe due process of law.

No error.