Citation Numbers: 66 S.E. 204, 151 N.C. 710
Judges: HOKE, J.
Filed Date: 11/24/1909
Status: Precedential
Modified Date: 1/13/2023
CLARK, C. J., dissenting arguendo. We do not refer to many of the interesting questions presented in defendant's case on appeal, for the reason that the Court is of opinion that in no aspect of the State's testimony can the defendant be convicted of the offense charged in the bill of indictment. The State does not contend or claim that such conviction can be upheld, except under our statute against bigamy (Rev. 1905, sec. 3361). On matters relevant to this inquiry, this section of our law provides as follows:
"3361. Bigamy. — If any person, being married, shall marry any other person, during the life of the former husband or wife, whether the second marriage shall have taken place in the State of North Carolina or elsewhere, every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony and imprisoned in the State's Prison or county jail for any term not less than four months nor more than ten years; and any such offense may be dealt with, tried, determined and punished in the county where the offender shall be apprehended or be in custody, as if the offense had been actually committed in that county."
This has long been the law of this State controlling the matter, and appears in terms exactly similar in the Code of 1883, as section 988. Construing this section, in S. v. Cutshall,
The case in question was determined on appeal by the State from an order quashing a bill of indictment for bigamy. The bill contained three counts: The first charged, in substance, a bigamous (713) marriage, occurring in the State of South Carolina. A second charged that, after such bigamous marriage in South Carolina, the parties came back to North Carolina and lived together as husband and wife. There was a third count in the bill, on which a nolle prosequi was entered in the lower court, and the contents are therefore immaterial.
The Supreme Court, as stated, held that no offense was charged in the first count, because our State law could not be given extra-territorial effect; and that none was charged in the second count, because the statute contained no such provision. Justice Avery, speaking to this last question, said: "The additional count, in which it was charged that the defendant, after the bigamous marriage in South Carolina, came into North Carolina and cohabited with the person to whom he was married, cannot be sustained, because the offense is not covered by the statute." And a perusal of the law gives clear indication that the Court has correctly construed it inCutshall's case. The only offense created and defined by this section of the statute is the "second marriage, while a former husband or wife is still living." This is declared to be felony, and it is the only act made criminal by the law, for it is perfectly plain that the subsequent words of the statute, "and any such offense shall be dealt with, tried, determined and punished in the county where the offender shall be apprehended or be in custody," refers only to the venue of the crime defined in the first clause, "such offense" being, as stated, "the second marriage, the former husband and wife still living." Coming back into the State after a bigamous marriage elsewhere, and a living together by the parties as husband and wife, might and ordinarily would constitute the crime of fornication and adultery. S. v. Cutshall,
There are decisions in many of the States, and by courts of recognized authority, sustaining convictions by reason of conduct similar to that imputable to defendant on this evidence, or upholding statutes condemning it. Brewer v. State,
As now advised, and speaking for himself, the writer sees no reason why a State could not declare the coming into the State and cohabiting together here by the parties, after a bigamous marriage in another State, a felony, and punish it as such; but the question is not presented, for the Court is clearly of opinion that our statute contains no such provision, and the prosecution of the defendant, therefore, for the offense charged, on the evidence as it now appears, cannot be sustained.
The Court is not inadvertent to S. v. Long,
For the error indicated, there will be a
New trial.