State v. Connor

• Citation: 142 N.C. 700, 55 S.E. 787
• Case Date: December 18, 1906
• Court: United States State Supreme Court of North Carolina

55 S.E. 787
142 N.C. 700

STATE .
v.
CONNOR.

Supreme Court of North Carolina.

Dec. 18, 1906.

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,

[55 S.E. 788]

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.

HOKE, J. 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: "Whether an exception in a statute is to be negatived in a pleading, or whether they are mere matters of defense, depends upon their nature, and not upon their placing or upon their being preceded by the words "except, or provided." And again: "The exceptions in a penal statute required to be negatived are such as are ss" incorporated with, and a part of the enactment, as to constitute a part of the definition or description of the offense." 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: "We find In the acts of our Legislature two kinds of provisos: The one in the nature of an exception,...