State v. Wilson
28 S.E. 416
N.C.
1897
Check Treatment
Clark, J.:

The defendants, Plato Ray, Hiram Wilson and Will Fender, are charged with a conspiracy to procure Hattie Phillips and Plettie Phillips to have carnal intercourse with said Ray'and Wilson through sham marriages celebrated before a person not authorized, and thereby seducing the women named through their belief that it was a valid marriage.

The indictment is very inartificially drawn, though as to form its defects are probably cured by The Code, Section 1183. The objection that the Judge, in sentencing Wilson to three years on the public roads, recited as reasons for the severity of the sentence the many offences of which he had been theretofore convicted, and his general bad character, is not well taken. Such matters ought justly and properly to be considered, as well as, on the other hand, a defendant’s previous good character in lightening the sentence to be imposed. In England and some of the States of this country there is an “Habitual Criminals” Act which requires heavier sentences for such offenders. Wliar. Cr. P. L. and Pr. §934 (9th Ed.); 1 McClain Cr. L., 528; Moore v. Missouri, 159 U. S., 673.

*655 The first ground of the motion in arrest of judgment that the bill is bad for duplicity cannot be sustained. It is true that the joining of two separate offences in the same count is bad for duplicity (State v. Cooper, 101 N. C., 684) or the charging different persons with different offences in the same indictment (State v. Hall, 97 N. C., 474,) both cited with approval in State v. Harris, 106 N. C., 682, but here the three defendants are charged with one and the same offence, to-wit: conspiracy to procure certain persons to be duped into illicit carnal intercourse. A charge that A stole the property of C and that B stole the property of D is bad for duplicity if made in one bill, but the charge that A, B and E conspired to steal the property of C and D and that C’s property- was to be carried off by one conspirator and D’s property by another, is not bad for duplicity, since the offence charged is not the larceny, which would be separate and distinct offences, but the conspiracy which is. a single offence participated in by all. 2 McClain, supra, § 978. Besides, duplicity is ground only for a motion to quash. Being cured by the verdict, it cannot be used as ground for a motion in arrest of judgment. Whar., supra, §§ 255, 760.

As however the case must go back for other reasons, the Solicitor may consider whether it is not advisable to send a more carefully drawn bill and whether it would not simplify the trial to send two bills, one charging the conspiracy to deceive Hattie Phillips by a sham marriage and the other charging a conspiracy to deceive her sister by a similar device.

The second ground in arrest of judgment is that no offence is charged. It was urged that consent makes marriage and, therefore, though the person solemnizing it was neither “an ordained minister or a Justice of the Peace,” (nor was the marriage according to the customs of the Society of Friends) as provided in The Code, Section 1812, it would *656 be a valid marriage. Such is not the law in North Carolina. Consent is essential to marriage but it is not the only-essential. 14 Am. & Eng. Enc., 472, note 3. In this State it must be acknowledged in the manner, and before some person, prescribed by the Section of The Code just cited. No celebration was required by The Canon Law prior to the Council of Trent, nor by the Civil Law, nor by the law in Scotland, nor in many States in this Union. In some States the question has never been decided. In other States celebration before some person authorized by law is held essential, as (after some hesitation) has been held to be the common law in England. Stewart Marriage & Div., Section 90; 14 Am. & Eng. Enc., 515. In the latter class is North Carolina.

There is no such thing as marriage simply by consent in this State. Ruffin, C. J., in State v. Samuel, 19 N. C., 177, and State v. Bray, 35 N. C., 290; Gaston, J., in State v. Patterson, 24 N. C., 346; Pearson, C. J., in Cooke v. Cooke, 61 N. C., 583, and the same is recognized as the law in the more recent cases of State v. Parker, 106 N. C., 711, and State v. Melton, 120 N. C., 591. In State v. Bray, supra, Ruffin, C. J., in an interesting discussion tracing our marriage law shows that, originally in this Colony, valid marriages could only be solemnized by ministers of the Church of England (with the result, as we now know from the “Colonial Records” that a large part of the population were not legally married, owing to the scarcity of such ministers). In 1715, Ch. 1, reciting the inconvenience from scarcity of ministers of the established Church, authorized the Governor of the Colony to solemnize marriages; then in 1741, Chapter 1, empowered Justices of the Peace to perform the ceremony; in 17(56, Oh. 9, the privilege was'extended to ministers of the Presbyterian Church, and at last, in 1778, Oh. 7, to ministers of all other denominations, and marriages according to the custom of the Society of Friends were *657 also made valid. . This last, made a little broader, is now The Code, § 1812. State v. Parker, 106 N. C., 711.

From this summary, it may be seen that a marriage pre-tendedly celebrated before a person not authorized would be a nullity, and a conspiracy to procure a woman to submit 'herself to the embraces of a man by false and fraudulent representations that the officiating person had authority to solemnize the rites of matrimony would be a conspiracy to do an unlawful act, and indictable. State v. Younger, 12 N. C., 357; 2 McClain, supra, § 959.

State v. Brown, 119 N. C. 825, merely held that where a private citizen celebrated a marriage between a man and woman with their consent, no fraud or conspiracy being charged, it was not indictable. That is a very different matter from the charge here. In the case stated in State v. Brown, the ceremony was a nullity and the man and woman living together on the strength of it would have been indictable for fornication and adultery, but there being nothing charged against the person officiating beyond his want of authority there was no criminal offence as to him.

The third and fourth grounds in arrest- of judgment are that there was no evidence sufficient to go to the jury against the defendants. These are not matters to be urged in arrest of judgment which can onlj” be based upon defects upon the. face of the record, and treated even as an exception it is too late'when taken after verdict. State v. Harris, 120 N. C., 577, citing State v. Kiger, 115 N. C., 746; State, v. Hart, 116 N. C., 976; Holden v. Strickland, 116 N. C., 185; Sutton v. Walters, 118 N. C., 495; Riley v. Hall, 119 N C., 406; State v. Leach, Ibid, 828, and other cases.

The fifth ground in arrest of judgment is that the Court declined to charge as prayed that there was no evidence of conspiracy between the defendants, and no agreement to do an unlawful act. This is certainly not ground in arrest of *658 judgment, but wo may treat it as an exception for refusal to charge. The burden was on the appellant to justify his prayer by showing that, in truth, there ivas no evidence, either by stating that as a fact in his case on appeal or setting out the evidence in his statement of the case and showing therefrom that there was none on that point. Williams v. Whiting, 92 N. C., 683; Merrell v. Whitmire, 110 N. C., 367; Falkner v. Thompson, 112 N. C., 455; James v. R. R., at this term. He did not do that, but the solicitor in accepting the appellant’s case on appeal generously came to his aid by adding that he did so on the condition that the “Judge’s notes of the testimony with instructions asked and refused, are made a part of the case on appeal.” The Cleric sends up the original of the .Judge’s notes of the testimonjr on file in his office and certifies that he does so, in lieu of sending a transcript thereof, because he “is not able to read the same.” Upon inspecting them, he is held excusable. Deciphering them the best we are able, we can find no sufficient evidence therein to justify the refusal to charge as prayed. It may bé, and is probable, that the evidence was much fuller and that the Judge’s notes are rather memo-randa than a transcript of the evidence. But the Solicitor has had them put into the case on appeal as a true statement of what the evidence was and the appellate Court is bound by them. Such method of making up a case on appeal camiot be commended and if followed would cause frequent miscarriages of justice. The Solicitor should have stated the evidence in his counter case (if he did not accept appellants’ case) and if the appellants did not accept the counter-case they could have sent it to the Judge to settle. State v. Baker, 119 N. C., 912.

From the importance of the subject we have discussed the points presented but on the last ground we must send the case back for a new trial.

New trial.