State v. Vandiver

144 S.E.2d 54 (1965) 265 N.C. 325

STATE
v.
Joseph Landrum VANDIVER, Jr.

No. 85.

Supreme Court of North Carolina.

September 22, 1965.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Charles W. Barbee, Jr., and Staff Atty. Leon H. Corbett, Jr., for the State.

Shelby E. Horton, Jr., Asheville, for defendant appellant.

PARKER, Justice.

Before pleading to the indictment, defendant moved to quash the indictment on the ground that his legal wife testified before the grand jury that found the indictment here a true bill. Defendant's daughter also testified before the grand jury. The court denied his motion, and he assigns this as error. This assignment of error is overruled.

By virtue of the express provisions of G.S. § 8-57, defendant's legal wife was a competent witness before the grand jury, which was considering an indictment against him charging him with a violation of the provisions of G.S. § 14-183, "to prove the fact of marriage and facts tending to show the absence of divorce or annulment proceedings wherein the husband and wife were parties, in cases of bigamy, or in cases of criminal cohabitation in violation of the provisions of G.S. § 14-183." In State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, the Court said:

"It is a well-settled principle of law in this State that an indictment will not be quashed, on a motion made in apt time, when some of the testimony before the grand jury given by a witness who is not disqualified is competent and some incompetent, because a court will not go into the barren inquiry of how far testimony which was incompetent contributed to the finding of an indictment as a true bill."

Defendant assigns as error the denial of his motion, made before pleading to the indictment, for a bill of particulars. The granting or denial of defendant's motion was within the discretion of the court and is not subject to review, except for palpable and gross abuse thereof. G.S. § 15-143; State v. Lippard, 223 N.C. 167, 25 S.E.2d 594; State v. Scales, 242 N.C. 400, 87 S.E.2d 916. We have examined the record as it relates to the court's denial of his motion for a bill of particulars, and no abuse of judicial discretion appears. This assignment of error is overruled.

There was an indictment against Frances Hall Young charging bigamous cohabitation by her with defendant, in violation of G.S. § 14-183. Defendant assigns as error the order of the court, on motion of the solicitor for the State, consolidating for trial this case with the case of defendant for the same offense. This assignment of error is overruled. The court had authority to order the consolidation. G.S. § 15-152; State v. Grundler, 251 N.C. 177, 111 S.E.2d 1; State v. Bryant, 250 N.C. 113, 108 S.E.2d 128; State v. Combs, 200 N.C. 671, 158 S.E. 252.

Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence. The State's evidence and defendant's evidence favorable to the State, considered in the light most favorable to the State, State v. Avent, 253 N.C. 580, 118 S.E.2d 47, show the following facts:

Defendant and Christine Vandiver were lawfully married on 26 February 1943. They lived together as man and wife until defendant in November 1963 left their home in the Dunbar Apartments in the city of Asheville or in the Asheville area, Buncombe County. Three children were born of their marriage. Christine Vandiver is living, and the marriage between her and defendant has not been dissolved by divorce or annulled.

Frances Hall Young, a married woman, separated from her husband but not divorced, in 1964 lived in the Skyland Apartments in Skyland, Buncombe County. On 14 September 1964 she and defendant were married to each other in Greenville, South Carolina, which would have been punishable as bigamous if entered into in North Carolina.

After Frances Hall Young and defendant were married in South Carolina, they returned to Buncombe County, and Frances Hall Young continued to live in the Skyland Apartments in Skyland. Thereafter until December 1964 defendant went to her apartment practically every evening, and his 1963 blue Valiant station wagon frequently would be parked there all night and was so seen by other tenants of the apartment building. There is plenary evidence, which it would serve no useful purpose to narrate here, tending to show defendant and Frances Hall Young during this period of time had sexual intercourse several times weekly with each other in her apartment.

G.S. § 14-183 makes cohabitation in this State following a bigamous marriage outside of this State, which marriage would be punishable as bigamous if contracted within this State, a separate offense. This is an offense tending to debase and demoralize society and to degrade the institution of marriage. The State's evidence, and defendant's evidence favorable to it, would legitimately permit, but not compel, a jury to be satisfied beyond a reasonable doubt that defendant contracted a bigamous marriage with Frances Hall Young in South Carolina, which would have been punishable as bigamous if entered into in North Carolina, and that thereafter they returned to North Carolina and from then until December 1964 they ostensibly lived or dwelled together as man and wife at night in her apartment in Skyland and there several times weekly in her apartment engaged in sexual intercourse, and that such acts were of a continuing and not a transitory nature. The evidence was sufficient to carry the case to the jury, and the judge correctly denied defendant's motion for judgment of compulsory nonsuit made at the close of all the evidence. State v. Setzer, 226 N.C. 216, 37 S.E.2d 513; 10 Am. Jur.2d, Bigamy, "D. Sexual Intercourse; Cohabitation," § 16; Black's Law Dictionary, 4th ed., "Cohabit or Cohabitation," p. 326; 2 Wharton's Criminal Law and Procedure, Anderson ed. (1957), Ch. 26, Bigamy, § 714, p. 523; 14 C.J.S. Cohabitation p. 1312.

Defendant has a number of exceptions as to the admission and exclusion of evidence, which he assigns as error. We have examined all of them with care, and all are without merit and are overruled.

Defendant has no exception to the charge.

In the trial below we find

No error.