State v. Brd.Way

• Citation: 157 N.C. 598,72 S.E. 987
• Court: United States State Supreme Court of North Carolina
• Decision Date: 27 November 1911
• Parties: STATE v. BROADWAY.

72 S.E. 987

157 N.C. 598

STATE

v.BROADWAY.

Supreme Court of North Carolina.

Nov. 27, 1911.

1. Constitutional Law (§ 197^*)—"Ex Post Facto Law."

An "ex post facto law" is one which either makes that a crime which was not a crime when the offense was committed, or which imposes a heavier sentence than that which was prescribed by law at that time.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 550; Dec. Dig. § 197.*

For other definitions, see Words and Phrases, vol. 3, pp. 2527-2533; vol. 8, p. 7657.]

2. Constitutional Law (§ 203*)—Ex Post Facto Laws—Amendments of Statutes.

Laws 1911, c. 16, amending Revisal 1905, 5 3351, defining and punishing incest by increasing the punishment and declaring that the amendment shall be in force from its ratification, does not apply to an offense committed prior to its enactment, and as to such offense is not an ex post facto law; the original statute being applicable thereto.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 5S4-590; Dec. Dig. § 203.*]

3. Statutes (§ 165*)—Implied Repeal—Punishment of Crime.

Repeals by implication are not favored, and Laws 1911, c. 16, amending Revisal 1905, § 3351, defining and punishing incest, by increasing the punishment and declaring that the amendment shall be in force from its ratification, does not repeal by implication the original statute.

[Ed Note.—For other cases, see Statutes, Cent. Dig. § 240; Dec. Dig. § 165.*]

4. Criminal Law (§ 369*)—Evidence—Admissibility—Other Offenses.

On a trial for incest, evidence of other acts of intercourse is competent in corroboration.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.*]

5. Incest (§ 13*)—Evidence—Admissibility.

On a trial of accused for incest with his daughter, evidence of cruel treatment of the daughter is admissible to show compulsion.

TEd. Note.—For other cases, see Incest, Cent. Dig. § 11; Dec. Dig. § 13.*]

6. Witnesses (§ 414*)—Impeachment—Corroboration.

The prosecuting witness on a trial for incest may be corroborated by proof of statements made before the trial similar to her testimony, and that fact may be shown by her own testimony.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1288; Dec. Dig. § 414.*]

Appeal from Superior Court, Rowan County; Daniels, Judge.

J. Thomas Broadway was convicted of incest and he appeals. Affirmed.

M. F. Hatcher and R. Lee Wright, for appellant.

T. W. Bickett, Atty. Cen., and George L. Jones, Asst. Atty. Gen., for the State.

CLARK, C. J. This is an indictment for incest, under Revisal 1905, § 3351, which provided that the punishment should be "by imprisonment in the state's prison for a term not exceeding five years in the discretion of the court." Laws 1911, c. 16, amended that section "by striking out the words 'five years' in line 5 of said statute, and inserting instead thereof the words '15 years' between the words 'exceeding' and 'in, ' " and provided that the amendment should be in force from its ratification, February 11, 1911. The indictment was found at May term, 1911, and the evidence showed the crime was committed prior to the act of 1911. The defense depends upon the question whether this is an ex post facto law.

An ex post facto law is one which either makes that a crime which was not a crime at the time the offense was committed, or imposes a heavier sentence than that which was prescribed by law at the time the offense was committed.

Here there was no change in the constituent elements of the crime. The change in the punishment took effect only, by the terms of the statute, "from its ratification, " and hence did not apply to an offense which was committed prior to its enactment.

Repeals by implication are not favored by the law. In this case there is neither express repeal of any part of the statute nor any repeal by implication. The statute stands intact as it was; the Legislature simply adding 10 years to the quantum of the punishment which the judge might impose. This additional 10 years was to take effect in the future, and, indeed, under the constitutional provision forbidding ex post facto laws, such additional punishment could not have applied to such crime unless committed after the act. The Legislature did not at-tempt to make it apply to crimes committed before that time, nor did the judge.

The subject is so fully and ably discussed by Mr. Justice Walker in State v. Perkins, 141 N. C. 797, 53 S. E. 735, 9 L. R. A. (N. S.) 165, that we can add nothing thereto. He quotes from Potter's Dwarris on Statutes, 156, with approval, the following, which is conclusive of this case: "It is a general rule that subsequent statutes, which add accumulated penalties and institute new methods of proceeding, do not repeal former penalties and methods of procedure ordained by preceding statutes, without negative words." He also quotes with approval 26 A. & E. (2d Ed.) 726 as follows: "Every effort must be made to make all the acts stand, and the later act will not operate as a repeal of the earlier one, if by any reasonable construction they can be reconciled. The repeal in any case will be measured by the extent of the conflict or the inconsistency between the acts, and, if any part of the earlier can stand as not superseded by the later one, it will not be repealed." In the present case the extension of the limit of the punishment which the judge could impose in futuro in no wise affected the elements which constitute the crime nor the punishment which would be imposed for its commission...