State v. Burnett

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: State v. Burnett, 142 N.C. 577, 55 S.E. 72 (N.C. 1906)
• Decision Date: 25 September 1906
• Parties: STATE . v. BURNETT.

55 S.E. 72

142 N.C. 577

STATE .

v.BURNETT.

Supreme Court of North Carolina.

Sept. 25, 1906.

1. Indictment and Information—Motion to Quash.

A motion to quash an indictment after plea of not guilty is allowable only in the discretion of the court.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 473.]

2. Same—Misjoinder of Offenses.

An indictment charging one in one count with a violation of Revisal 1905, § 3358. making it a felony to abduct a child under the age of 14 years, residing with his father, and in another count a violation of section 3630, makingit a misdemeanor to entice any minor to go beyond the limits of the state without the consent of the parent, cannot be quashed for misjoinder of offenses; the counts being mere statements of the same transaction, varied to meet the different phases of proof.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 403-413.]

3. Criminal Law — Instructions — Duty of Couut to Give.

It is not necessary for the court to give requested instructions verbatim, and a charge substantially embracing the requests so far as they are correct is sufficient.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 2013, 2014.]

4. Abduction—Nature of Offense — Statutes.

The offense of abduction, denounced by Revisal 1905, § 3358, making it a felony to abduct any child under the age of 14 years who shall reside with his father, is not established, where there is force or inducement, and the departure of the child from the custody of the father is voluntary.

[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Abduction, §§ 1-10.]

5. Same—Instructions.

An instruction on the trial of an indictment for violating Revisal 1905, § 3358, making it an offense to abduct any child under the age of 14 years who shall reside with his father, that the jury must be satisfied that the child was under 14 years, that she was residing with her father, and that accused carried her away against her will and by means of force, fraud, or other inducement, and that if there was no inducement or force and the child departed from her father voluntarily, accused was not guilty, and that, should it be found that the child was taken away by accused against her father's will, accused could not be convicted unless it should be found that the child was carried away by force or fraud, or by the persuasion of the accused, was sufficiently favorable to accused.

6. Same—Elements of Offense.

To constitute the abduction of a child in violation of Revisal 1905, § 3358, making it a felony to abduct a child under the age of 14 years, it is not necessary to prove that the taking of the child was against the father's will and without his consent.

[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Abduction, § 10.]

7. Same—Defense—Burden of Proof.

One charged with the abduction of a child in violation of Revisal 1905, § 3358, has the burden of establishing the defense that the carrying away of the child was with the father's consent.

[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Abduction, § 17.]

Appeal from Superior Court, Vance County; Ward, Judge.

W. E. Burnett was convicted of abduction, and he appeals. Affirmed.

F. S. Sprall, T. M. Pittman, and J. C. Kittrell, for appellant.

The Attorney General, for the State.

CLARK, C. J. The defendant was convicted of abduction. There are two counts in the bill, one based upon Revisal 1905, § 3358, which makes it a felony to "abduct, or by any means induce any child under the age of 14 years, who shall reside with the father, * * * to leave such person. * * *" The second count is under Revisal 1905, § 3030, which makes it a misdemeanor to entice any minor to go beyond the limits of the state for the purpose of employment without the consent in writing "of the parent, guardian or other person having authority over such minor." The jury found the defendant guilty on the first count, and not guilty on the second. After the indictment was read to the jury, the defendant asked leave to withdraw his plea of not guilty and moved to quash the indictment for misjoinder of two different offenses. This was denied, and defendant excepted.

A motion to quash, after plea of not guilty, Is allowable only in the discretion of the eourt. State v. DeGraff, 113 N. C. 088, IS S. E. 507; State v. Flowers, 109 N. C. 845, 13 S. E. 718; State v. Miller, 100 N. C. 543, 5 S. E. 925; State v. Jones, 88 N. C. 671. We may note, however, that if the motion had been made in apt time, when the several counts are, as in this case, merely statements of the same transaction varied to meet the different phases of proof, the bill cannot be quashed. State v. Harris, 106 N. C. 682, 11 S. E. 377; State v. Parish, 104 N. C. 679, 10 S. E. 457; State v. Morrison, 85 N. C. 561; State v. Eason, 70 N. C. 88. An indictment containing several counts describing the same transaction in different ways is unobjectionable. State v. Haney, 19 N. C. 390; State v. Eason, supra; State v. Reel, 80 N. C. 442; State v. Morrison, supra; State v. Parish, supra; State v. Howard, 129 N. C. 656, 40 S. E. 71; State v. Morgan, 133 N. C. 743. 45 S. E. 1033.

To charge two separate and distinct offenses in the same count is bad for duplicity (State v. Cooper, 101 N. C. 684, 8 S. E. 134), and the bill may be quashed on motion in apt time; but the objection is waived by failing to move in apt time and is cured by a nol. pros, as to all but one charge, or by verdict. State v. Cooper, supra. When an Indictment charges several distinct offenses in different counts, whether felonies or misdemeanors, the bill is not defective; but the court may In its discretion compel the solicitor to elect, if the offenses are actually distinct and separate, lest the prisoner be confused in his defense or embarrassed in his challenges; but there is no ground to require the solicitor to elect when the indictment charges the same act "under different modifications, so as to correspond with the precise proofs that might be adduced." State v. Haney, 19 N. a 394; State v. Barber, 113 N. C. 714, 18 S. E. 515; Goldbrick Case, 129 N. C. 656, 40 S. E. 71, and cases there cited. Besides, duplicity is ground only for a motion to quash, made in apt time, and is cured by verdict. State v. Wilson, 121 N. C. 655, 28 S. E. 416; State v. Hart, 116 N. C. 978, 20 S. E. 1014; State v. Cooper, supra; State v. Haney, supra; State v. Simons, 70 N. C. 336; State v. Locklear, 44 N. C. 205.

The court charged the jury on the first count that they must be satisfied beyond a reasonable doubt that the girl was under 14 years, that she was residing with her father, and that the defendant took and carried her away, not only against his will and without his consent, but that the taking and carrying of the child was by the defendant's force, fraud, persuasion, or other inducement, exercising a...