State v. Norman
| Decision Date | 30 June 1829 |
| Citation | 13 N.C. 222 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. THOMAS NORMAN. |
FROM GUILFORD.
An indictment on a statute need not negative a proviso which merely withdraws a case from its operation; aliter where the proviso adds a qualification to the enactment so as to bring a case within it, which but for the proviso would be without the statute. Therefore an indictment on the statute of 1790 against bigamy, which avers that the first wife was living at the time of the second marriage, is good, without an averment that the first marriage then subsisted.
The prisoner was tried on the last circuit before MARTIN, J., on the following indictment:
The jurors, etc., on their oath present, that T. N., late of, etc., on, etc., in, etc., did marry one, M. B., spinster, and her, the said M. B., then and there had for his wife, and that the said T. N. afterwards, to wit, etc., with force and arms, in, etc., felonously did marry and take to wife one P. S., spinster, and to her, the said P. S., then and there was married, the said M. B., his former wife being then alive, and in full life in, etc. Against the form of the acts of the general assembly in such case made and provided; and against the peace and dignity of the State."
After a verdict for the State the counsel for the prisoner moved in arrest of judgment, which motion being sustained by his Honor, Mr. Solicitor-General Scott prayed an appeal to this Court.
The form in which the record of the cause was certified constituted an objection in this Court. After setting forth the names of the jurors, the words of the transcript were "who being sworn, charged and empanelled true deliverance to make between the State and the prisoner at the bar,
Thomas Norman, and having heard their evidence, both of law and the fact, the counsel for the State and the prisoner, and also the charge of the Court, returned to the Court (in manner and form as the custom is) their verdict, guilty, when the Court recorded the verdict in the words following, to wit: "Find the defendant, Thomas Norman,guilty of the felony and bigamy, and of taking to himself a second wife, his former wife being still living, as charged in the bill of indictment, and that the second marriage was after 1 April, 1828, but before the finding of the bill of indictment."
The dates set forth in the record were also in figures, and not in letters, as is usual in records.*
HENDERSON, C. J., We find in the acts of our legislature two kinds of provisoes—the one in the nature of an exception, which withdraws the case provided for from the operation of the act, the other adding a qualification, whereby a case is brought within that operation. Where the proviso is of the first kind it is not necessary in an indictment, or other charge founded upon the act, to negative the proviso; but if the case is within the proviso it is left to the defendant to show that fact by way of defense. But in a proviso of the latter description the
indictment must bring the case within the proviso. For, in reality, that which is provided for, in what is called a proviso to the act, is part of the enactment itself. If this case is tested by these rules it will be found that the proviso, which exempts from the operation of the act persons who have been divorced, is one of the first class. It withdraws such a case from the operation of the act. If, therefore, it be the fact, that the defendant had been divorced from his first wife, it lay on him to show it as a defense. All the precedents produced are so, except that in the Duchess of Kingston's case. The form of the indictment in that case was, I presume, settled by Lord Thurlow, and it being a case of great excitement, I suppose the averment that she had not been divorced from her former husband, was made from great caution.
Although the act of 1809 contains no proviso, and is in itself a complete enactment on the subject, yet as it is an...
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State v. Rankin
...of littering, and the only matter left to decide is what kind of proviso subdivision (a)(1) is as these are described in State v. Norman , 13 N.C. 222, 226 1829. Norman described two kinds of provisos, one "which withdraws the case provided for from the operation of the act" and "the other ......
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State v. Falkner
... ... This has been the ... uniform ruling of this court when there has been a proviso ... (and there is none here) which withdraws the defendant upon a ... certain state of facts from liability under the broad general ... terms of the statute creating the offense. State v ... Norman, 13 N.C. 222; State v. Call, 121 N.C ... 649, 28 S.E. 517; State v. Welch, 129 N.C. 580, 40 ... S.E. 120. A very similar case to this was State v ... George, 93 N.C. 570, "for abduction of a ... child," in which the court held that the words of the ... proviso "without the consent and ... ...
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State v. Sturdivant, 1
...indictment need not negate a defense to the stated crime; rather, it is left to the defendant to show his defenses at trial. State v. Norman, 13 N.C. 222 (1828). More importantly, we are not convinced that defendant's indictment utterly failed to indicate that the kidnapping was accomplishe......
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State v. Williams
...lawful divorces in defense, the burden was on the defendants to satisfy the jury of their lawfulness. State v. Herron, supra; State v. Norman, 13 N.C. 222. And while the standing alone, were to be taken as prima facie valid, nevertheless they were not conclusive. Streitwolf v. Streitwolf, 1......