State v. . George

93 N.C. 564

• Court: Supreme Court of North Carolina
• Decided: October 5, 1885
• Status: Published

Opinion

The exception to the admission of evidence of the confession of the defendant was properly overruled. The testimony was clearly admissible. It was voluntary and without any inducement of hope or fear, and was made after he was cautioned by the witness Pearson not to tell anything to convict himself. The evidence would have been admissible even if the defendant at the time of making the confession had been in custody and charged with (570) the crime. S. v. Patterson, 68 N.C. 292.

The grounds assigned for the arrest of judgment ought not to have been sustained.

It was necessary in the indictment to state the means by which the abduction was affected.

The statute is broad and comprehensive in its terms and embraces all means by which the child may be abducted from the father or the person having her in charge. The crime is defined in the statute by the termabduction, which is a term of well known signification, and means in law "the taking and carrying away of a child, a ward, a wife, etc., either by fraud, persuasion or open violence." Webster's Dictionary.

The indictment strictly follows the words of the statute, and that is laid down in all the authorities as the true and safe rule. It is true there are some few exceptions, but we do not think they embrace this case. In the case S. v. Stanton, 23 N.C. 424, it is said by Chief JusticeRuffin that "when a statute makes a particular act an offense, and sufficiently describes it by terms having a definite and specific meaning, without specifying the means of doing the act, it is enough to charge the act itself without its attendant circumstances. Thus, upon a statute making it a felony to endeavor to seduce a soldier from his duty, an indictment is good which charges such an endeavor without stating the mode adopted," and to sustain his position he relied upon the case of Rex v. Fuller, 1 Bos. Pul., 180. See also S. v. McIntosh, 92 N.C. 794, and the cases there cited, especially the case S. v. Liles, 78 N.C. 496.

The second ground, that the indictment did not allege that the child was abducted without the consent and against the will of the father is without any foundation, because it is not a part of the description of the offense that the child should be abducted without the consent or against the will of the father.

The remaining ground is even less tenable than the preceding, for here the clause creating the offense is in sec. 973, and the proviso which the defendant's counsel insists should have been negatived (571) in the indictment is in the subsequent section, 974, and it is a well settled rule that "when a statute contains provisos and exceptions in distinct clauses it is not necessary to state in the indictment that the defendant does not come within the exception or negative the proviso it contains." Chitty Cr. L., 283, b. 284; Archbold Cr. L., 53. It is only necessary to negative an exception or proviso when it is stated in the enacting clause, in order that the description of the crime may in all respects correspond with the statute. Bishop on Criminal Procedure, sec. 37; Archbold, ibid.; S. v. Lanier, 88 N.C. 658.

There is no error. Let this be certified to the Superior Court of Wake County that the case may be proceeded with according to law.

No error. Affirmed.

Cited: S. v. Foy, 98 N.C. 746; S. v. Emery, ibid., 772; S. v. Watkins,101 N.C. 705; S. v. Harwood, 104 N.C. 728; S. v. Chisenhall, 106 N.C. 679;S. v. Haddock, 109 N.C. 875; S. v. Bryant, 111 N.C. 694; S. v.Downs, 116 N.C. 1067; S. v. Covington, 125 N.C. 642; S. v. R. R.,ibid., 671; S. v. Newcomb, 126 N.C. 1106; S. v. Mitchell, 132 N.C. 1036;S. v. Burnett, 142 N.C. 581; S. v. Connor, ibid., 707; S. v. Hicks,143 N.C. 694; S. v. Harrison, 145 N.C. 417; S. v. Leeper, 146 N.C. 661;S. v. Whedbee, 152 N.C. 784; Howell v. Howell, 162 N.C. 284; S. v.Carpenter, 173 N.C. 771; S. v. Marks, 178 N.C. 732; Little v. Holmes,181 N.C. 418; S. v. Falkner, 182 N.C. 806; S. v. Hopper, 186 N.C. 410.