State v. Burnett

• Decision Date: 25 September 1906
• Citation: 55 S.E. 72,142 N.C. 577
• Parties: STATE v. BURNETT.
• Court: North Carolina Supreme Court

55 S.E. 72

142 N.C. 577

STATE v. BURNETT.

Supreme Court of North Carolina

September 25, 1906

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

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

F. S Spruill, 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,§ 3630, 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 court. State v. DeGraff, 113 N.C. 688, 18 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.C. 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 controlling influence upon her conduct; that, if he merely permitted her to go with him and his family and gave her his active assistance, that of itself would not make him guilty; that abduction is the taking and carrying of a child, ward, etc., either by fraud, persuasion, or open violence; that the consent of the child is no defense, but, if there was no inducement nor force, and the child departed from her father entirely voluntarily on her part, the defendant was not guilty of abduction; that, should the jury find that the girl was taken away by the defendant against her father's will and without his consent, the defendant...