State v. O'Higgins

• Decision Date: 15 October 1919
• Docket Number: 273.
• Citation: 100 S.E. 438,178 N.C. 708
• Parties: STATE v. O'HIGGINS.
• Court: North Carolina Supreme Court

100 S.E. 438

178 N.C. 708

STATE v. O'HIGGINS.

No. 273.

Supreme Court of North Carolina

October 15, 1919

Appeal from Superior Court, Cumberland County; Stacy, Judge.

Charles L. O'Higgins was convicted of elopement with a married woman, and he appeals. No error.

In a prosecution for elopement with a married woman, evidence that defendant abandoned his motherless children to elope with the woman was competent to prove the strength of his infatuation.

H. McD. Robinson, W. C. Downing, and Robert S. McNeill, all of Fayetteville, for appellant.

Jas. S Manning, Atty. Gen., Frank Nash, Asst. Atty. Gen., and Sinclair & Dye, of Fayetteville, for the State.

BROWN J.

The statute under which the defendant was indicted (Rev. § 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."

The points presented by this appeal may be stated as follows: (1) Was there any evidence that the eloping wife had been since her marriage an innocent and virtuous woman? (2) Was evidence that the defendant abandoned his two motherless children, when he eloped with the woman, admissible?

The husband testified that his wife was not a bad woman, that he was "wrapt up in her," and that he knew that his wife was an innocent and virtuous woman. We think this evidence tends very strongly to establish the virtuous character of the wife by the person who had opportunity to know her better than any one else, and that it was amply sufficient to justify the verdict of the jury. The evidence that the defendant abandoned his motherless children in order to elope with Mrs. Miller was competent to prove how strong the infatuation was which induced him to leave his own children in a helpless condition in order to elope with another man's wife.

In charging the jury his honor placed the matter clearly before them, and we think his definition as to what constitutes elopement is in accord with established authority. 2 Bl. Com. p. 130; Black's Law Dict. p. 418. These authorities declare an elopement to be the act of the wife, who voluntarily deserts her husband to go away with and cohabit with another man. This is substantially what the judge told the jury.

No error.

CLARK, C.J., concurs fully in all that is said by BROWN, J., in his very clear and terse opinion in this case and adds:

It is proper that attention should be called to the following anomalous and extraordinary provision in Rev. § 3360, under which this indictment is had:

"Provided, that no conviction shall be had upon the unsupported testimony of any such married woman."

This is without any parallel in the laws of North Carolina, except in the similar provision in Rev. § 3354, for seduction under promise of marriage, which provides:...