State v. . Lyerly ( 1859 )

The bill of indictment was in these words:

(159) "STATE OF NORTH CAROLINA — Rowan County. "The jurors for the State, upon their oath, present, that George M. Lyerly (a male), late of said county of Rowan, and Jane May (a female), late of said county of Rowan, on 1 January, in the year of our Lord 1859, and on divers other days and times, both before and after that day, with force and arms, in the said county, unlawfully did bed and cohabit together without being lawfully married; and then, and on said other days and times, and there did commit fornication and adultery, against the form of the statute in such case made and provided, and against the peace and dignity of the State." Signed by the solicitor, and endorsed "A true bill."

The defendant Jane May had not been taken. The jury found a general verdict of guilty. The defendant moved in arrest of judgment, first, that the offense defined in The Code was not charged in the bill with sufficient certainty; secondly, that the verdict was general, the other defendant not having been taken.

The motion was overruled, and the defendant appealed to this Court. Two grounds are alleged in support of the motion to arrest. First, that the offense defined by The Code is not charged in the bill with the required certainty. Secondly, that there has been a general verdict of guilty, the other defendant not being on trial or taken.

The degree of certainty required in an indictment is declared to be "certainty to a certain intent in general." Co. Lit., 303a.

This is further explained thus: "That everything which the pleader should have stated, and which is not either expressly alleged or by necessary implication included in what is alleged, must be presumed against him." Applying this rule to the case before us, (160) we think the indictment will do.

The statute declares: "If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be deemed guilty of a misdemeanor." The indictment charges that George M. Lyerly, a male, and Jane May, a female, on 1 January, 1859, and on divers other days, etc., unlawfully did bed and cohabit together without being lawfully married, and then and there, and on said other days, etc., did commit fornication and adultery.

The certainty required by the rule above stated in such a description of the corpus delicti as embraces every ingredient of the offense, either by express words or by necessary implication from what is expressed. A plain illustration of the rule may be drawn from the descriptive words, "male" and "female," adopted by the draftsman of the bill. These words do not per se import that the parties were man and woman, but when you connect them with other parts of the indictment, it appears by necessary implication.

So, we think, where all the words used in the indictment to charge the offense are taken together, every ingredient of the misdemeanor as defined by statute is included.

The words "lewd" and "lascivious," used by The Code in the definition of the offense, are intended, we suppose, to exclude the idea that the bedding and cohabiting might be innocent. The words that are added in the bill of indictment, "and did then and there commit fornication," exclude the presumption more conclusively. If the words of the statute had been preferred, they would not have expressed and omitted ingredient in the offense, and would scarcely have excited any additional idea in the mind.

We dismiss the matter with one other observation, and that is, in framing bills of indictment upon statutes, it is much better to pursuestrictly the words of the statute. Such words receive a certain judicial interpretation, and by adhering to them steadfastly all question as to the meaning of the words used is avoided. The indictment (161) seems to have been a precedent under the statute as it stood prior to 1856.

The other ground for the motion is not tenable. It is true, the offense cannot be committed except by more than one; but the general verdict of guilty finds the guilt of the woman as well as the guilt of the defendant, as against the latter. The extent to which the cases have gone is that where one only is convicted, and the others acquitted, there can be no judgment. It is well settled, however, that one, in the absence of his confederate, may be put upon trial, convicted and punished. The possibility that the confederate may be afterwards acquitted will not arrest the execution of the law upon the one found guilty. S. v. Tom, 13 N.C. 569.

The motion in arrest was correctly overruled on both grounds.

PER CURIAM. Affirmed.

Cited: S. v. Guest, 100 N.C. 412; S. v. Cutshall, 109 N.C. 773; S.v. Britt, 150 N.C. 812.