Citation Numbers: 14 S.E. 107, 109 N.C. 764
Judges: CLARK, J.
Filed Date: 9/5/1891
Status: Precedential
Modified Date: 1/13/2023
MERRIMON, C. J., dissenting. The defendant alone was on trial.
Before the plea of not guilty was entered, the defendant moved that court refuse to take cognizance of the criminal action, on the (765) ground that the defendant W. T. Cutshall was brought here from the State of Tennessee upon a requisition for bigamy, issued by the Governor of North Carolina upon the Governor of Tennessee, for the execution of which one C. W. Rivenbark was appointed agent for this State. That in proof of said allegation it was shown that said State agent went to Tennessee with said requisition; that upon the arrival of said C. W. Rivenbark at Knoxville, Tenn., he found the defendant under arrest and in the custody of the deputy sheriff, who had arrested him upon a telegram upon the said charge of bigamy; that said Rivenbark appealed to the defendant not to require him to apply to the Governor of Tennessee to get an indorsement of said requisition from the Governor of Tennessee, as it would only operate as a delay in taking the defendant; and requested the defendant to come to North Carolina upon the requisition as it stood, on the ground that the grandson of the said Rivenbark had died in North Carolina, and he, Rivenbark was anxious to return to North Carolina as soon as possible; that Cutshall agreed to and did come with said C. W. Rivenbark to North Carolina. *Page 551
This motion was overruled by the court and the case ordered to proceed, to which ruling the defendant excepted.
Upon the plea of not guilty, the jury rendered the following special verdict:
"That before 9 February, 1890, the defendant Cutshall represented to one Susan E. Pickard that he was a single man, and she being a single woman induced her thereby to enter into a marriage with him, she, the said Susan, fully believing him, the said Cutshall, at the time of the making of said representations and when the marriage was entered into, to be a single man. That the defendant Cutshall and the said Susan E. Pickard were married in York County, S.C., on said day, the ceremony being performed by a regularly ordained minister of the Gospel; that after the said marriage was celebrated, the defendant and said Susan E. Pickard cohabited for some time as man and wife in the county of Mecklenburg and State of North Carolina, (766) and before the finding of this bill; that at the time they so cohabited, and whilst cohabiting, the said Susan E. Pickard honestly believed that the defendant was her lawful husband, and the jury find that she would not have so cohabited with defendant but for such belief; the jury further find that the defendant, when he and said Susan E. Pickard were married, and whilst they cohabited together, was a married man, and that said Susan E. Pickard immediately upon ascertaining that fact dissolved the connection.
"Upon the foregoing facts, the jury are ignorant as to whether the defendant be guilty or not guilty of the offense charged against him, and thereupon pray the advice of the court thereon. And for their verdict they do say that if upon the whole matter the court shall be of opinion that the defendant is guilty, they so find; otherwise, they find him not guilty."
The court upon the foregoing special verdict, instructed the jury that the facts so found constituted the offense as charged in the bill of indictment, as to the defendant W. T. Cutshall, and thereupon the jury rendered a verdict of guilty as to said W. T. Cutshall, in manner and form as charged in the bill of indictment.
There was a judgment upon the verdict, from which the defendant appealed. The special verdict finds that the defendant not being legally married to his codefendant (who was not on trial), lived with her for years as man and wife. The interesting question is not now *Page 552 before us, whether he is not also guilty of bigamy when he has gone through the ceremony of marriage with her in another State, (767) having at the time a lawful wife living. The State has chosen to prosecute him for fornication and adultery, the court below adjudged him guilty on the special verdict, and the appeal presents the correctness of that ruling for review.
It is true that fornication and adultery is a joint act. It must be shown that two persons, a male and a female, have habitually indulged in unlawful sexual intercourse. But it is not essential to show that both parties had a guilty intent. It is sufficient if both parties participated in the unlawful sexual intercourse. This is demonstrated frequently in practice by placing one defendant on trial when nothing need be proven as to the other defendant, who is not on trial, beyond the incidental fact that it is shown as against the party on trial that the unlawful and habitual sexual intercourse existed between them. Nor can it make any difference that here it affirmatively appears that the party not on trial had no guilty intent, for if the guilty intent of both parties is essential to the conviction of the party on trial, the burden would always be on the State to prove it. But in truth, all that is necessary to be shown (when only one is on trial), is that there was illicit and habitual sexual intercourse by the party on trial with the person of the opposite sex, charged in the indictment. There is nothing in this which conflicts with the authority of S. v. Mainor,
In Alonzo v. The State,
"Suppose a father and his daughter are indicted for incestuous intercourse with each other. Upon the trial of the daughter it is conclusively proved that at the time of committing the physical act she was an idiot, or that she was wholly ignorant of the relationship (769) between herself and her father, without any fault of hers; of course, in either of these cases, she would be acquitted. Would it not be monstrous to hold that because of her innocence, the beastly father must go unpunished for his unnatural crime? Such cannot be the law, and such, we believe, is not the law as declared by the weight of authority."
In Missouri it has been held, in a case of incest, where one party had knowledge of the relationship and the other was ignorant of it, that the former may be convicted and the latter acquitted. S. v. Ellis,
The fact is not to be lost sight of that in an indictment for fornication and adultery, the State is not called on to prove a criminal intent. The case is made out when it is shown that a man and woman not being married to each other habitually engage in sexual intercourse. That this is "lewd and lascivious" is not required to be shown, but is an inference of law from the facts proved, as with "malice" in indictments *Page 554
for homicide, even though in the latter case an intent must be charged. As to this offense, no intent is required to be charged or proved. Indeed, when the habitual sexual intercourse is shown, the law casts the burden of showing marriage on the defendants (S. v. McDuffie,)
This distinction must exist: (1) Because in the nature of things the State can show no intent except that of an habitual engaging in unlawful sexual intercourse by the parties charged; (2) if the State must show the guilty intent beyond the intent to do the act, the parties not being married to each other, those who lived in illegal habitual sexual intercourse, believing it to be lawful, as Mormons, free-lovers, and the like, would not be indictable; (3) a party who lived in such habitual adulterous intercourse with an idiot or insane person, or who might induce another person to go through the ceremony of marriage before one who was not authorized to celebrate it, by falsely pretending to the other party that the celebrant was a proper officer, would be guilty of no offense. It would always be easy in indictments for this offense to show a pretended ceremony before some one not an officer, and that the woman believed him to be such, and neither party (if this were law) could be convicted. The man could thus have the benefits of matrimony, without its responsibility as to offspring or the public.
In the present case the male defendant has grossly violated the law, and has sinned against the woman as well as the law, and her simple, unsuspecting "faith" in his honor and truth cannot "be imputed to him for righteousness," though it may be so as to herself, if she was innocent of "contributory negligence" and made reasonable inquiry.
Speaking for the majority of the Court, the case of S. v. Mainor,supra, cannot be sustained on reason, since one may be put on trial for this offense and acquitted for lack of proof, and when the other is tried the proof may be ample, and there can be no estoppel (771) as to the State in favor of a party not on trial (S. v. Caldwell, 8 Baxter (Tenn.), 576), as there is none against him when put on trial for this offense after conviction of the other party. S. v. Parham,
This offense differs from an indictment for conspiracy, in that the latter requires the concurrence of two or more minds. No act whatever need be shown. S. v. Brady,
As to the other plea, it is sufficient to say that the defendant came back to the State voluntarily, not upon extradition papers, and the point intended to be raised in that regard is not presented.
State v. . Rinehart , 106 N.C. 787 ( 1890 )
State v. . Brady , 107 N.C. 822 ( 1890 )
Geisselman v. Geisselman , 134 Md. 453 ( 1919 )
People v. Frye , 248 Mich. 678 ( 1929 )
Harmon v. Harmon , 245 N.C. 83 ( 1956 )
State v. Taylor , 354 N.C. 28 ( 2001 )
State v. . Sauls , 190 N.C. 810 ( 1925 )
State v. . Cutshall , 110 N.C. 538 ( 1892 )
Woody v. State , 10 Okla. Crim. 322 ( 1913 )
State v. Wade , 95 S.C. 387 ( 1913 )
Reynolds v. State , 82 Tex. Crim. 505 ( 1918 )
State v. . Lawson , 123 N.C. 740 ( 1898 )
State v. . Davenport , 225 N.C. 13 ( 1945 )
State v. . Simpson , 133 N.C. 676 ( 1903 )
State v. . Ray , 151 N.C. 710 ( 1909 )
State v. . Cody , 111 N.C. 725 ( 1892 )