Summary
In S. v. Norman, 13 N.C. 222 (226), the rule is stated as follows: "We find in the acts of our Legislature two kinds of provisos — the one in the nature of an exception, which withdraws the case provided for from the operation of the act, the other adding a qualification, whereby a case is brought within that operation.
Summary of this case from State v. EppsOpinion
(June Term, 1829.)
An indictment on a statute need not negative a proviso which merely withdraws a case from its operation; alter where the proviso adds a qualification to the enactment so as to bring a case within it, which but for the proviso would be without the statute. Therefore an indictment on the statute of 1790 against bigamy, which avers that the first wife was living at the time of the second marriage, is good, without an averment that the first marriage then subsisted.
The prisoner was tried on the last circuit before MARTIN, J., on the following indictment:
Attorney-General, for the State.
Winston, for the prisoner. (226)
FROM GUILFORD.
The jurors, etc., on their oath present, that T. N., late of, etc., on, etc., in, etc., did marry one, M. B., spinster, and her, the said M. B., then and there had for his wife, and that the said T. N. afterwards, to wit, etc., with force and arms, in, etc., feloniously did marry and take to wife one P. S., spinster, and to her, the said P. S., then and there was married, the said M. B., his former wife being then alive, and in full life in, etc. Against the form of the acts of the general assembly in such case made and provided; and against the peace and dignity of the State."
After a verdict for the State the counsel for the prisoner moved in arrest of judgment, which motion being sustained by his Honor, Mr. Solicitor-General Scott prayed an appeal to this Court.
The form in which the record of the cause was certified constituted an objection in this Court. After setting forth the names of the jurors, the words of the transcript were "who being sworn, charged and empanelled true deliverance to make between the State and the prisoner at the bar, Thomas Norman, and having heard their evidence, both of law and the fact, the counsel for the State and the prisoner, and also the charge of the Court, returned to the Court (in manner and form as the custom is) their verdict, guilty, when the Court recorded the verdict in the words following, to wit: "Find the defendant, Thomas Norman, (223) guilty of the felony and bigamy, and of taking to himself a second wife, his former wife being still living, as charged in the bill of indictment, and that the second marriage was after 1 April, 1828, but before the finding of the bill of indictment."
The dates set forth in the record were also in figures, and not in letters, as is usual in records.
Act of 1790.
1. If any person now married, or who hereafter shall be married, doth take to him or herself another husband or wife, while his or her former wife or husband is still alive, every such offence shall be felony, and the person so offending shall suffer death as in cases of felony. Provided, always, That this act shall not extend to any person or persons whose husband or wife shall continually remain beyond sea for the space of seven years together, nor to any person or persons whose husband or wife shall absent him or herself in any other manner for the space of seven years together, such person not knowing his or her said husband or wife to be living within that time.
2. This act shall not extend to any person or persons who are or shall be at the time of such after-marriage divorced according to the mode established, or which hereafter shall be established by law, nor to any person or persons whose former marriage is declared by law to be void and of no effect, nor to any person or persons for or by reason of any former marriage had or made within the age of consent.
Act of 1809.
An act to amend the first section of an act passed at Fayetteville, in the year one thousand seven hundred and ninety, entitled "An act to restrain all married persons from marrying again whilst their former wives or former husbands are living."
1. If any person now married, or who hereafter shall be married, doth take to him or herself another wife, while his or her former wife or husband is still living, every such offender shall be adjudged a felon, without benefit of clergy, and shall suffer death.
We find in the acts of our legislature two kinds of provisoes — the one in the nature of an exception, which withdraws the case provided for from the operation of the act, the other adding a qualification, whereby a case is brought within that operation. Where the proviso is of the first kind it is not necessary in an indictment, or other charge founded upon the act, to negative the proviso; but if the case is within the proviso it is left to the defendant to show that fact by way of defense. But in a proviso of the latter description the indictment must being the case within the proviso. For, in reality, that which is provided for, in what is called a proviso to the act, is part of the enactment itself. If this case is tested by these rules it will be found that the proviso, which exempts from the operation of the act persons who have been divorced, is one of the first class. It withdraws such a case from the operation of the act. If, therefore, it be the fact, that the defendant had been divorced from his first wife, it lay on him to show it as a defense. All the precedents produced are so, except that in the Duchess of Kingston's case. The form of the indictment in that case was, I presume, settled by Lord Thurlow, and it being a case of great excitement, I suppose the averment that she had not been divorced from her former husband, was made from great caution.
Although the act of 1809 contains no proviso, and is in itself a complete enactment on the subject, yet as it is an amendment to and (227) explanatory of the act of 1790, and was designed only to oust the offender of his clergy, I have considered this case as if every proviso contained in the first act was incorporated in that of 1809, for such I believe to be its just exposition.
The exception that the dates are in figures, not written, nor in Roman numerals, has been, I believe, disallowed in the old Supreme Court more than once.
It is objected that the transcript sent up from the Superior Court is a mere certificate of what was done, and not a copy of the record. It is somewhat of that character, but a sufficiency appears as a copy to warrant a judgment for the State.
PER CURIAM. Judgment reversed. The Court below will proceed to judgment of death.
Cited: S. v. Tomlinson, 77 N.C. 529; S. v. Club, 100 N.C. 482; S. v. Turner, 106 N.C. 694; S. v. Pool, Ib., 700; S. v. Davis, 109 N.C. 784; S. v. Downs, 116 N.C. 1067; S. v. Melton, 120 N.C. 596; S. v. Call, 121 N.C. 649; S. v. Newcomb, 126 N.C. 1106, 1110; S. v. Yoder, 132 N.C. 1117; S. v. Goulden, 134 N.C. 746; S. v. Burton, 138 N.C. 576; S. v. Connor, 142 N.C. 702, 703, 707, 709; S. v. Long, 143 N.C. 677; S. v. Hicks, Ib., 694; Rabon v. R. R., 149 N.C. 60. (229)