State v. Connor
Decision Date | 18 December 1906 |
Citation | 142 N.C. 700,55 S.E. 787 |
Court | North Carolina Supreme Court |
Parties | STATE . v. CONNOR. |
1. Indictment—Description of Statutory
Offense—Negativing Exceptions.
Where a statute creates a substantive criminal offense, the description being complete and definite, and a subsequent clause excepts certain cases from its provisions, the excepted cases need not be negatived in the indictment unless such exceptions form but a part of the description of the offense.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 295-298.]
2. Criminal Law—Statutory Offense—Exceptions in Statute—Burden of Proof.
Where a statute creates a substantive criminal offense, the description being complete and definite, and a subsequent clause excepts certain cases from its provisions, the burden is on the accused to prove that his offense falls within the exceptions, unless such exceptions form but a part of the description of the offense.
3. Indictment — Description of Statutory Offense—Elopement—Negativing Exceptions.
Revisal 1905, § 3300, provides that: "It any male person shall abduct or elope with the wife of another, he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage has been an innocent and virtuous woman: Provided, that no conviction shall be had upon the unsupported testimony of any such married woman." Held, that an indictment for the offense must negative the exception in the first proviso.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 295-298.]
4. Criminal Law — Statutory Offense — Elopement—Exception in Statute—Burden of Proof.
Revisal 1905, § 3360, provides that: "If any male person shall adbuct or elope with the wife of another, he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year or more than ten years: Provided that the woman since her marriage, has been an innocent and virtuous woman: Provided, that no conviction shall be had upon the unsupported testimony of any such married woman." Held, that the burden is on the state in a prosecution for such offense to prove beyond a reasonable doubt that the case does not fall within the first proviso.
5. Adultery—Elopement—Evidence as to Character of Woman.
In a prosecution for criminal elopement under Revisal 1905, § 3360, making it a crime to elope with the wife of another man if she has, since marriage, been innocent and virtuous, evidence on the part of the state as to the general character of the woman for virtue is admissible. Clark, C. J., and Brown, J., dissenting.
Appeal from Superior Court, Buncombe County; Moore, Judge.
Prosecution of Connor for criminal elopement. Defendant was found guilty, and appeals. Reversed.
Frank Carter and H. C. Chedester, for appellant.
Robert D. Gilmer, Atty. Gen., for the State.
The statute under which the conviction was had, Revisal 1905, § 3360, is as follows: "If any male person shall abduct or elope with the wife of another, he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage, has been an innocent and virtuous woman: Provided, that no conviction shall be had upon the unsupported testimony of any such married woman." Defendant, by exceptions properly noted, assigns for error: (1) That the judge erred in charging the jury that the burden was on the defendant to prove that the "woman in the case" was neither innocent nor virtuous. It is well established that, when a statute creates a substantive criminal offense, the description of the same being complete and definite, and by subsequent clause, either in the same, or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made In the first instance on the part of the prosecution. In such circumstance, a defendant charged with the crime, who seeks protection by reason of the exception, has the burden of proving that he comes within the same. State v. Heaton, 81 N. C. 543; State v. Goulden, 134 N. C. 743, 47 S. E. 450. These limitations on the clause creating the offense being usually exxiressed under a proviso, we find the rule frequently stated "that, when a proviso in a statute withdraws a case from the operations of the body of the section, it need not be negatived in the indictment." This statement is entirely correct so far as noted in cases where the same has been applied, and will be found generally sufficient for the determination of questions arising under statutes of this character. The test here suggested, however, is not universally sufficient, and a careful examination of the principle will disclose that the rule and its application depends, not so much on the placing of the qualifying words, or whether they are preceded by the terms "provided" or "except, " but rather on the nature, meaning, and purpose of the words themselves. And, If these words, though in the form of a proviso or an exception, are in fact, and by correct interpretation, but a part of the definition and description of the offense, they must be negatived In the bill of indictment. In such case, this is necessary in order to make a complete statement of the crime for which defendant is prosecuted. In State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754, it is said: Our own decisions are in support of this proposition. State v. Norman, 13 N. C. 223; State v. Liles, 78 N. C. 496; State v. Burton, 138 N. C. 576, 50 S. E. 214. See, also, Clark's Criminal Procedure, pp. 272, 273, which gives a very full and satisfactory statement of the doctrine. This being the correct test, we think it clear that the words in the statute here considered and contained in the first proviso are, and were intended to be, a part of the description of the offense.
It does not withdraw a case from the operation of the body of the section in which a definite substantive offense is created, but it adds a qualification to the offense itself. As said by Henderson, Judge, In State v. Norman, supra: This interpretation is confirmed by the highly penal nature of the statute, making the offense a felony, and imposing a punishment of not less than one or more than 10 years. Such a penalty was never intended to be imposed on one who should elope with a wife separated from her husband, and who was an abandoned prostitute, and such a statute was in all probability only passed to protect women who had been innocent and virtuous, and to punish the criminal who had wronged and debauched them. This view finds further support in the second exception, which provides that the unsupported testimony of the woman herself should not warrant a conviction; evidently contemplating that the burden of the first proviso was on the state, for it is only as to facts Included In the first that the testimony of the woman was likely to be important. The words contained in the first proviso being descriptive of the offense and a part of its definition, it Is necessary, in stating the crime charged, that they should be negatived in the bill of indictment. And wherever this Is required and the statute does not otherwise provide, and the qualifying facts do not relate to defendant personally and are not peculiarly within his knowledge, the allegation must be made good by proof, and, being part of the crime, must be proved by the state and beyond a reasonable doubt. State v. Crowder, 97 N. C. 432, 1 S. E. 690; State v. Wilbourne, 87 N. C. 529. The correct doctrine as to the rule and the exceptions to it is well stated In Archbold's Criminal Pleading as follows: ...
To continue reading
Request your trial-
Gonzalez v. Warden, State Prison
...facts referred to in the exception or proviso related to the defendant personally, or were peculiarly within his knowledge." State v. Connor, supra, 142 N.C. 704-05; v. Gonzalez, supra, 300 Conn. 508; People v. Patterson, supra, 39 N.Y.2d 305 ("[t]he placing of the burden of proof on the de......
-
State v. Rankin
...considered subdivision (a)(1) to be a proviso, that would not end our inquiry into whether it is an essential element of littering. In State v. Connor we observed that a proviso can be so "mixed up with the description of the offense" that it comprises an essential part of the statement of ......
-
State v. Falkner
... ... The burden is still with the state, under all the evidence, ... to satisfy the jury beyond a reasonable doubt of the ... defendant's guilt. State v. Woodly, 47 N.C. 276; ... State v. Wilbourne, 87 N.C. 529; State v ... Hopkins, 130 N.C. 647, 40 S.E. 973; State v ... Connor, 142 N.C. 700, 55 S.E. 787; State v ... Leeper, 146 N.C. 655, 61 S.E. 585; and State v. A ... C. L. R. Co., 149 N.C. 470, 62 S.E. 755 ... It is ... sometimes said that the burden of producing evidence rests ... upon the party best able to sustain it, because of facts ... ...
-
State v. Taylor
...the State beyond a reasonable doubt. State v. Mather , 221 N.C. App. 593, 599, 728 S.E.2d 430, 434 (2012) (quoting State v. Connor , 142 N.C. 700, 704, 55 S.E. 787, 789 (1906) ). "This Court ... reviews de novo the trial court's jury instructions regarding the elements of the offense at iss......