State v. Hopper

• Decision Date: 07 November 1923
• Docket Number: 347.
• Citation: 119 S.E. 769,186 N.C. 405
• Parties: STATE v. HOPPER.
• Court: North Carolina Supreme Court

119 S.E. 769

186 N.C. 405

STATE v. HOPPER.

No. 347.

Supreme Court of North Carolina

November 7, 1923

Appeal from Superior Court, Rockingham County; Lane, Judge.

Walter Hopper was convicted of abduction, and he appeals.No error.

This was a criminal indictment against the defendant--the bill of indictment charges that "with force and arms, at and in the county aforesaid, unlawfully, willfully, and feloniously did abduct and elope with Mrs. Jesse Gilbert, wife of Jesse Gilbert, she, the said Mrs. Jesse Gilbert, since her marriage having been an innocent and virtuous woman."

The defendant did not introduce any testimony.

The state introduced Jesse Gilbert, husband of prosecutrix, who testified as follows:

"That he and Grace Gilbert were married in 1916; that her maiden name was Grace Brooks, and that they were married at Spray that they lived in Spray up to two or three months before the beginning of this trial; that his home was on Morgan street in front of the Methodist Church, but that he was staying with his mother on Flynt Hill, and boarding there at the time of the alleged happening; that he first discovered his wife's absence on the 19th day of January, 1923, when he came home from the mill; that he knows Walter Hopper, and that he lived two or three hundred yards away in the same neighborhood where the witness boarded; that Walter Hopper is a married man and has a wife and three children; that Walter Hopper's wife was the witness' cousin; that his wife was gone from the 19th day of January to the 17th day of March, when he caught her; that he caught her in West Durham; that he never saw Walter Hopper any more, he was missing from Spray until the trial (preliminary hearing in Spray); that he did not know where they caught him, but heard they caught him in Danville.Defendant testified that he and his wife lived together up to that time."

Mrs Grace Gilbert, prosecutrix, testified:

'That she is the wife of Jesse Gilbert, that the defendant and her husband were friends, and that he was at their home real often, and that he overpersuaded her to go away from her husband.

Q.Tell how often he talked to you about--persuaded you to leave there before you actually went?A.Daily, about 10 months.

That the defendant was taking meals at the same place she and her husband boarded, but stayed at his home at night, and that he begged her to leave with him daily for about 10 months, and that before they went he told her to go to Stoneville and get on the train and he would go to Ridgeway and get on the same train (Stoneville being in North Carolina, and Ridgeway in Virginia).That this was the train going to Winston-Salem and that they would go away and get a divorce and be married.That they went to Greensboro and from Greensboro to Birmingham, Ala., and stayed there one night.That they went to different towns in Alabama and lived as man and wife.Then I (meaning the prosecuting witness, Grace Gilbert) came back to Durham, and the defendant went somewhere else.That he said he was going to Burlington, but he did not go to Burlington, and she did not know where he went.That the defendant had opportunities to talk to her while she was keeping house for her husband's mother.That he is about 32 or 33 years old, and that she(meaning the prosecuting witness, Grace Gilbert) is 23 years old.That up to the time she was induced to leave her home she was innocent of any man outside her husband, except him.That up to that time no man had had unlawful intercourse with her.That previous to the time the defendant had improper relations with her he had discussed the matter of their leaving together and getting a divorce.That he had nothing to do with her before the discussion."

On cross-examination she said, in part:

"That she did not remember whether she said in the recorder's court anything about Hopper persuading her away.That she did not leave the state and go to Virginia to keep from testifying.That she went to Lynchburg to work in the overall factory, but came back to attend court.That defendant talked to her and persuaded her for about 10 months.

Q.You deny that Walter Hopper or anybody else had any unlawful relations with you up to the time you left Spray?A.I deny any one.

Q.Then you admit he had unlawful relations with you before he left Spray?A.Yes; just a little while.

Q.How long?A.I don't remember how long, just a month or so, I suppose.

Q.Would it be one month or two months?A.Three months.

That they left in January and that she supposed it was in October previous or some time along there when they first had unlawful intercourse."

She admitted: That she drew out of the bank $490 of her own money when she left and went to Stoneville; that she paid her railroad fare from Spray to Stoneville, and from Stoneville; that defendant bought the tickets in Greensboro to Birmingham, Ala., and that he borrowed the money from her and promised to pay it back; that she did not know he had no money until they got away from home.That she had been in bathing with him; that he got the bathing suit at the house hanging on the porch; that his wife was going in bathing with them, but she decided not to go in; that his wife was with them at the time.

R. D. Shumate and P. S. Gillie both testified that Mrs. Grace Gilbert's general character was good.The state rests.

Defendant moved to nonsuit under Consol. Stat. § 4643(Mason Act).

The court did not rule on the motion; court took recess for dinner.Upon convening of court after dinner, solicitor for the state recalled Jesse Gilbert and examined him; this being allowed by the court in its discretion, to which the defendant excepted.

Jesse Gilbert, for the state, testified:

"Q.What do you know about your wife's chastity and conduct up to the time of this man's invasion of your home?

Q.Up to the time she went away?A.It was all right so far as I know.

Q.What was the condition of Hopper's wife and family at the time he left?A.They were sick in bed.

Q.Who was sick in bed?A.The kids and his wife were sick.

Q.Do you know whether they had funds or support or anything to go upon?A.I do not know, only except they made up some money.I do not know.

Q.Did he own their home they were living in?A.No, sir; he did not own his home.

Q.Did his wife have any estate or property?A.Had the stuff in the house.

Q.Did he have anything else?A.No, sir.

Q.State whether or not his wife and children had any means of support other than his labor?No answer."

All these questions were objected to and exceptions taken.

Mrs. Grace Gilbert, recalled by the state, testified:

"Q.Please state if, at the time you say this man persuaded and induced you to leave your home, whether or not he said anything then about your furnishing the money to go on?A.He did not."(Objection and exception.)

Defendant renewed his motion for judgment of nonsuit, which was refused by the court.Objection and exception.

The court charged the jury on the law, as he interpreted it to be, and applicable to the crime charged, and gave the contentions of the state and defendant.The exceptions by the defendant to the charge, material to the decision of this case, are hereafter set out.

The jury returned a verdict of guilty.The solicitor prayed judgment of the court, and the defendant was sentenced to the state's prison for a period of four years.The defendant excepted and appealed to this court, and assigned as errors:

First was to the question asked Jesse Gilbert, "You don't know where they caught him?" and allowing him to answer, "I heard they caught him in Danville."

Second was in failing to grant nonsuit when the state rested, and to the court permitting the state, after the court had failed to rule, to put on more testimony and after the noon recess.

Third was to the court's permitting the witness, Jesse Gilbert, to be recalled and asked the question, "What do you know about your wife's chastity and conduct up to the time of this man's invasion of your home?" and allowing him to answer, "It was all right so far as I know."

The next seven were to the testimony of Jesse Gilbert when he was recalled, after the state rested, beginning with the question, "What was the condition of Hopper's wife and family at the time he left?"

Eleventh was to the court's permitting Grace Gilbert to be recalled, after the state rested and motion made to nonsuit, and being asked the question, "Please state if, at the time you say this man persuaded and induced you to leave your home, whether or not he said anything then about your furnishing the money to go on?" and to answer, "He did not."

The other exceptions and assignments of error are to the charge as given by the court, but we will consider only the fourteenth and fifteenth exceptions, which embrace substantially all the other exceptions to the charge that are material:

Fourteenth: "The statute says that if a woman voluntarily leaves her husband for the purpose of going away with another man to indulge in intercourse with him--that the man who leaves and goes away with a woman who has voluntarily left her husband for that purpose is guilty of elopement."

Fifteenth "Abduction may be accomplished either by force--the woman may be carried away by force against her will; or one may be carried away where she has been induced to go by fraud or deceit or persuasion, be carried away in that way, led away, as the term applies, and in furtherance of the scheme of going away to leave her husband and elope, if, while persuading her and trying to induce her to leave, a man accomplishes her seduction, then it is no defense that before leaving he induced her to engage in intercourse with him, if she up to that time,...