State v. Sauls

• Decision Date: 23 December 1925
• Docket Number: 43.
• Citation: 130 S.E. 848,190 N.C. 810
• Parties: STATE v. SAULS.
• Court: North Carolina Supreme Court

130 S.E. 848

190 N.C. 810

STATE v. SAULS.

No. 43.

Supreme Court of North Carolina

December 23, 1925

Appeal from Superior Court, Wilson County; Sinclair, Judge.

C. L Sauls was convicted of incest, and he appeals. No error.

Indictment must charge incest substantially in terms of statute.

The indictment was as follows:

The jurors for the state, upon their oath, present: That C. L Sauls, late of the county of Wilson, on the _______ day of October, in the year of our Lord 1923, with force and arms at and in the county aforesaid, feloniously and incestuously did have intercourse with Hattie Sauls, said C. L. Sauls being the father of said Hattie Sauls, against the form of the statute in such case made and provided, and against the peace and dignity of the state.

The defendant was convicted, and from the judgment pronounced he appealed, assigning errors, which are set out in the opinion.

Woodard & Rand and A. O. Dickens, all of Wilson, and Manning & Manning, of Raleigh, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

Though punishable by the ecclesiastical courts of England as an offense against good morals, incest was not indictable at common law. It was made a felony in this state by the Act of 1879, c. 16, C. S. 4337, 4338; State v. Keesler, 78 N.C. 469; State v. Cutshall, 109 N.C. 764, 774, 14 S.E. 107, 26 Am. St. Rep. 599; State v. Brittain, 117 N.C. 783, 23 S.E. 433. As it is of statutory origin, an indictment therefor must charge a crime substantially within the terms of the statute. The act denounced as a felony is carnal intercourse between grandparent and grandchild, parent and child, and brother and sister of the half or whole blood. Section 4337. The word "carnal," as qualifying the word "intercourse," was omitted from the indictment, and upon this ground the defendant in apt time moved to quash the bill and excepted to the denial of his motion.

In our criminal procedure it is provided that every indictment shall be sufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligible, and explicit manner, and that it shall not be quashed by reason of any informality or refinement if sufficient matter appear therein to enable the court to proceed to judgment. C. S. § 4623. The indictment, construed in the light of this statute, need not charge carnal intercourse in express words; it is sufficient if other language of equivalent import is used. In preparing the bill the draftsman used equivalent language. Webster defines incest as "the crime of co-habitation or sexual commerce between persons related within the degrees wherein marriage is prohibited by law," and "incestuous" as "guilty of incest." Worcester and the Century Dictionary give substantially the same definition. Incestuous intercourse is essentially carnal intercourse. While the precise question has not been decided here, indictments charging "incestuous intercourse" have been sustained in other states. State v. Learned, 73 Kan. 328, 85 P. 293; Hintz v. State, 58 Wis. 413, 17 N.W. 639; Mercer v. State, 83 Fla. 555, 92 So. 535; State v. Morgan, 42 S.D. 517, 176 N.W. 35; State v. Dana, 59 Vt. 614, 10 A. 727; Baker v. State, 30 Ala. 521. The crime was charged in a plain, intelligible, and explicit manner, not easily to be misunderstood by the defendant. We think there was no error in denying the motion to quash the indictment.

The jury were instructed to "scrutinize the evidence of the defendant and that of all his close relatives before accepting it as true," and the defendant excepted because the instruction was not extended and applied to all interested witnesses. The exception must be overruled. In State v. O'Neal, 187 N.C. 22, 120 S.E. 817, it is said:

"Instruction to scrutinize the testimony of a witness on the ground of interest or bias is a subordinate and not a substantive feature of the trial, and the judge's failure to caution the jury with respect to the prejudice, partiality, or inclination of a witness will not generally be held for reversible error unless there be a request for such instruction."

There is another exception which demands consideration. The defendant was arrested on May 15, 1925, at 9:30 a. m., on a warrant charging him with an assault on a female person (C. S. § 4215), and at 1 o'clock on the same day the grand jury returned three indictments against him, two of them charging an assault, the other charging incest. The defendant, having been brought into court, stated that he had not been able to secure and confer with counsel, and was not ready for trial, and the judge said he would continue the case either to the night session or until the next morning. The defendant replied that he would try to get ready for trial at the night session. The court convened at 7:30 p. m., and the defendant filed an affidavit and made a motion for continuance, alleging that immediately upon his arrest in the morning he had been confined in jail, had not been informed of the nature of the charge against him until 1 o'clock, had not been able to confer with counsel at all until 4:30 p. m., and then not satisfactorily, and that certain witnesses were necessary for his defense. The motion was denied, and an exception was duly entered. It is earnestly insisted by the defendant that he was denied his constitutional rights (article 1, §§ 11, 17), and, in any event, that the refusal to grant his motion was such an abuse of discretion as entitles him to a new trial. We are unable to see in what respect the defendant's constitutional rights were denied him, unless by the judge's refusal to grant the continuance. The exception, then, finally depends on the question whether there was an abuse of discretion, and that there was is really the position that was taken on the argument.

In Armstrong v. Wright, 8 N. C. 93, Henderson, J., said:

"The very act of vesting a discretionary power proves that the subject-matter depends on such a variety of circumstances, where each shade may make a difference, that it is impossible to prescribe any fixed rules or laws by which the subject can be regulated. And although it be said that a sound discretion means a legal discretion, yet, when we ask what the legal discretion is, we are as much at a loss as we were before the definition, to declare the rules or laws by which the discretion shall be regulated. To prescribe fixed rules for discretion, is at once to destroy it. This opinion is very much supported by the practice in England. I do not know a single case where any decision, depending on discretionary power, has been the subject of a writ of error; and I think that the power of this court to correct errors in law, extends not to those errors which may be committed in the exercise of a discretion, but only to those where the fixed and certain rules, emphatically called laws, are mistaken."

It was subsequently held in a number of decisions that the refusal to continue a case rests in the judge's discretion upon matters of fact which this court has no power to review. State v. Duncan, 28 N.C. 98; State v Collins, 70 N.C. 242, 16 Am. Rep. 771; Austin v. Clarke, 70 N.C. 458; Moore...