ClarksoN, J.
Tbe defendant was indicted under the following statute: “If any male person shall abduct or elope with the wife of another he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage, has been an innocent and virtuous woman: Provided further, that no conviction shall be had upon the unsupported testimony of any such married woman.” C. S., 4225.
The essential elements of the crime are: (1) If any male person shall abduct or elope with the wife of another. (2) The woman since her marriage has been an innocent and virtuous woman. (3) That no conviction shall be had upon the unsupported testimony of any such married woman.
What is the,meaning of abduct or elope? The word “abduct” or “abduction” is from the Latin word “abduco” — to lead away.
Shepherd, J., in S. v. Chisenhall, 106 N. C., at p. 619, quotes Ashe, J., in S. v. George, 93 N. C., 567, as follows: “Our statute is broad and comprehensive in its terms, and embraces all means by which the child may be abducted,” and further says: “The crime is defined in the statute by the term ‘abduction,’ 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. See S. v. Burnett, 142 N. C., 581; Humphrey v. Pope, 54 Pac., 847 (122 Cal., 253); Baumgartner v. Eigenbrot (100 Md., 508), 60 Atl., 601-3; Carpenter v. People, 8 Barb., 606.
The word “elope” Webster defines: “To run away, to escape privately, from the place or station to which one is bound by duty; said especially of a man or woman, either married or unmarried, who runs away with a paramour or sweetheart.”
“Elope.” — The departure of a married woman from her husband and dwelling with an adulterer, although the courts in many of the earlier cases exclude the conception “adultery” from the meaning of the word. 20 C. J., 402.
■ “Yet now by the statute, Westminster 2 (a part of the common law of this State), if a woman voluntarily leaves (which the law calls eloping from) her husband and lives with an adulterer, she shall lose her dower, unless her husband be.voluntarily reconciled to her.” Cooley’s Blackstone (3d Ed.), Yol. 1, sec. 130.
“These authorities declare an elopement to be an1 act of the wife, who voluntarily deserts her husband to go away with and cohabitate with another man.” S. v. O'Higgins, 178 N. C., 709.
What is the meaning of innocent and virtuous woman ? “An innocent and virtuous woman is one who never-had illicit intercourse with any man and who is chaste and pure.” S. v. Whitley, 141 N. C., 826; [411] S. v. Ferguson, 107 N. C., 841. See cases cited in S. v. Johnson, 182 N. C., 888. Hardin v. Davis, 183 N. C., 47.
Walker, J., in S. v. Johnson, supra, says: “But we may pause bere to state that, on the next trial, it will be proper for the court to instruct the jury that if the prosecutrix had committed adultery with the man who afterwards became her husband, even though it was often repeated before marriage, yet if, after she thus fell, she married her lover and was always faithful to him, and ever, after the first act of adultery with him, was innocent and virtuous, .that is, had not had sexual intercourse with any man until the defendant seduced her under promise of marriage, if he did such a thing, then that she would be an innocent woman, and if she was also chaste and pure in the sense above defined, she also would be a virtuous woman within the meaning of the statute. An adulteress may reform and become innocent and even .virtuous, and if this woman has done so, the statute protects her just as much as if she had never fallen, but had always walked in the straight and narrow way of spotless innocence, virtue, and chastity, not even permitting undue familiarity from any man, and especially the debaucher.”
What is the meaning of “Unsupported testimony of any such married woman?” “The virtuous character and conduct of the prosecutrix was proved, so the testimony of the injured was not 'unsupported’ but derived confirmation from that of others, as the statute prescribes.” S. v. Horton, 100 N. C., 448. See S. v. Moody, 172 N. C., 967, and eases cited. This supporting evidence may consist of evidence of good character which supports the allegation that the prosecutrix is innocent and virtuous. S. v. Cooke, 176 N. C., 735. The burden was on the State to prove the married woman was innocent and virtuous. S. v. Connor, 142 N. C., 700.
The first assignment of error was to the question asked Jesse Gilbert, “You don’t know where they caught him,” and allowing him to. answer, “I heard they caught him in Danville.” The record shows no exception to this question or answer. This assignment cannot' be considered. Rules of Practice in Supreme Court, Rule 21, 185 N. C., 795; Byrd v. Southerland, per curiam, ante, 384.
The second assignment of error “was in failing to grant nonsuit when the State rested and to the court permitting the State, after the court had failed to rule, to put on more testimony and after the noon recess.” The court below had discretion in the conduct of the case. This Court will not review this discretion under the facts of this case.
“While the necessity for exercising this discretion in any given case is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment, in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it except, perhaps, in extreme circumstances, not at all likely to [412] arise; and it is therefore practically unlimited.” Jarrett v. Trunk Co., 142 N. C., 469; May v. Menzies, ante, 144.
The third assignment of error was to the court’s permitting the witness Jesse Gilbert to be recalled and asked the question, “What do you know about your wife’s chastity and conduct up to the time of this man’s invasion of your home?” and allowing him to answer, “It was all right, so far as I know.” This very point was decided that it was competent in S. v. O’Higgins, supra.
The next seven assignments of error were to the testimony of Jesse Gilbert, when he was recalled, after the State rested, beginning with the question, “What was the condition of Hopper’s wife and family at the time he left?” This kind, of testimony was objected to in S. v. O’Higgins, supra, and Brown, J., said: “The evidence that the defendant abandoned his motherless children in order to elope with Mrs. Miller was competent to prove how strong the infatuation was which induced him to leave his own children in a helpless condition in order to elope with another man’s wife.”
The eleventh assignment of error was to the court’s permitting Grace Gilbert to be recalled, after the State rested and motion made to non-suit, and being asked the question, “Please state if, at the time you say this man persuaded and induced you to leave your home, whether or not he said anything then about your furnishing the money to go on,” and to the answer, “He did not.”
Free access — add to your briefcase to read the full text and ask questions with AI
ClarksoN, J.
Tbe defendant was indicted under the following statute: “If any male person shall abduct or elope with the wife of another he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage, has been an innocent and virtuous woman: Provided further, that no conviction shall be had upon the unsupported testimony of any such married woman.” C. S., 4225.
The essential elements of the crime are: (1) If any male person shall abduct or elope with the wife of another. (2) The woman since her marriage has been an innocent and virtuous woman. (3) That no conviction shall be had upon the unsupported testimony of any such married woman.
What is the,meaning of abduct or elope? The word “abduct” or “abduction” is from the Latin word “abduco” — to lead away.
Shepherd, J., in S. v. Chisenhall, 106 N. C., at p. 619, quotes Ashe, J., in S. v. George, 93 N. C., 567, as follows: “Our statute is broad and comprehensive in its terms, and embraces all means by which the child may be abducted,” and further says: “The crime is defined in the statute by the term ‘abduction,’ 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. See S. v. Burnett, 142 N. C., 581; Humphrey v. Pope, 54 Pac., 847 (122 Cal., 253); Baumgartner v. Eigenbrot (100 Md., 508), 60 Atl., 601-3; Carpenter v. People, 8 Barb., 606.
The word “elope” Webster defines: “To run away, to escape privately, from the place or station to which one is bound by duty; said especially of a man or woman, either married or unmarried, who runs away with a paramour or sweetheart.”
“Elope.” — The departure of a married woman from her husband and dwelling with an adulterer, although the courts in many of the earlier cases exclude the conception “adultery” from the meaning of the word. 20 C. J., 402.
■ “Yet now by the statute, Westminster 2 (a part of the common law of this State), if a woman voluntarily leaves (which the law calls eloping from) her husband and lives with an adulterer, she shall lose her dower, unless her husband be.voluntarily reconciled to her.” Cooley’s Blackstone (3d Ed.), Yol. 1, sec. 130.
“These authorities declare an elopement to be an1 act of the wife, who voluntarily deserts her husband to go away with and cohabitate with another man.” S. v. O'Higgins, 178 N. C., 709.
What is the meaning of innocent and virtuous woman ? “An innocent and virtuous woman is one who never-had illicit intercourse with any man and who is chaste and pure.” S. v. Whitley, 141 N. C., 826; [411] S. v. Ferguson, 107 N. C., 841. See cases cited in S. v. Johnson, 182 N. C., 888. Hardin v. Davis, 183 N. C., 47.
Walker, J., in S. v. Johnson, supra, says: “But we may pause bere to state that, on the next trial, it will be proper for the court to instruct the jury that if the prosecutrix had committed adultery with the man who afterwards became her husband, even though it was often repeated before marriage, yet if, after she thus fell, she married her lover and was always faithful to him, and ever, after the first act of adultery with him, was innocent and virtuous, .that is, had not had sexual intercourse with any man until the defendant seduced her under promise of marriage, if he did such a thing, then that she would be an innocent woman, and if she was also chaste and pure in the sense above defined, she also would be a virtuous woman within the meaning of the statute. An adulteress may reform and become innocent and even .virtuous, and if this woman has done so, the statute protects her just as much as if she had never fallen, but had always walked in the straight and narrow way of spotless innocence, virtue, and chastity, not even permitting undue familiarity from any man, and especially the debaucher.”
What is the meaning of “Unsupported testimony of any such married woman?” “The virtuous character and conduct of the prosecutrix was proved, so the testimony of the injured was not 'unsupported’ but derived confirmation from that of others, as the statute prescribes.” S. v. Horton, 100 N. C., 448. See S. v. Moody, 172 N. C., 967, and eases cited. This supporting evidence may consist of evidence of good character which supports the allegation that the prosecutrix is innocent and virtuous. S. v. Cooke, 176 N. C., 735. The burden was on the State to prove the married woman was innocent and virtuous. S. v. Connor, 142 N. C., 700.
The first assignment of error was to the question asked Jesse Gilbert, “You don’t know where they caught him,” and allowing him to. answer, “I heard they caught him in Danville.” The record shows no exception to this question or answer. This assignment cannot' be considered. Rules of Practice in Supreme Court, Rule 21, 185 N. C., 795; Byrd v. Southerland, per curiam, ante, 384.
The second assignment of error “was in failing to grant nonsuit when the State rested and to the court permitting the State, after the court had failed to rule, to put on more testimony and after the noon recess.” The court below had discretion in the conduct of the case. This Court will not review this discretion under the facts of this case.
“While the necessity for exercising this discretion in any given case is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment, in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it except, perhaps, in extreme circumstances, not at all likely to [412] arise; and it is therefore practically unlimited.” Jarrett v. Trunk Co., 142 N. C., 469; May v. Menzies, ante, 144.
The third assignment of error was to the court’s permitting the witness Jesse Gilbert to be recalled and asked the question, “What do you know about your wife’s chastity and conduct up to the time of this man’s invasion of your home?” and allowing him to answer, “It was all right, so far as I know.” This very point was decided that it was competent in S. v. O’Higgins, supra.
The next seven assignments of error were to the testimony of Jesse Gilbert, when he was recalled, after the State rested, beginning with the question, “What was the condition of Hopper’s wife and family at the time he left?” This kind, of testimony was objected to in S. v. O’Higgins, supra, and Brown, J., said: “The evidence that the defendant abandoned his motherless children in order to elope with Mrs. Miller was competent to prove how strong the infatuation was which induced him to leave his own children in a helpless condition in order to elope with another man’s wife.”
The eleventh assignment of error was to the court’s permitting Grace Gilbert to be recalled, after the State rested and motion made to non-suit, and being asked the question, “Please state if, at the time you say this man persuaded and induced you to leave your home, whether or not he said anything then about your furnishing the money to go on,” and to the answer, “He did not.”
As already stated, the court below, in its sound discretion, had the power to allow this witness to be recalled and examined. The testimony given was bearing on the abduction, which can be done by fraud, persuasion, or open violence. It was for the purpose of showing that, after he had persuaded and induced her to consent to leave, and she had yielded to the “studied, sly, ensnaring art . . . dissembling smooth” of the seducer, that nothing was said to her about her furnishing the money to go away on, and also to contradict any inference that may be drawn from the fact that on cross-examination she testified that she herself had drawn money out of the bank when she left. It was to strengthen 'the contention of the State that this woman, caught in the “snare of the fowler,” was “helpless.” “Behold! as the clay is in the potter’s hand, so are ye in my hand.”
The fourteenth assignment of error is to the charge, as follows: “The statute says that, if a woman voluntarily leaves her husband for the purpose of going away with another man to indulge in intercourse with him, that the man who leaves and goes away with a woman who has voluntarily left her husband for that purpose is guilty of elopement.” This charge is a correct statement of the meaning of elopement in the statute. This is the meaning given by Blackstone, supra, and S. v. O’Higgins, supra.
[413] The most serious assignment of error is that part of the fifteenth, in which the court charged: “If, while persuading her and trying to induce her to leave, a man accomplishes her seduction, then it is no defense that, before leaving, he induced her to engage in intercourse with him, if she, up to that time, when in furtherance and as a part of a scheme of getting her to leave, or inducing her to leave, as it were, induced her to engage in sexual intercourse with him, she would still be an innocent and virtuous woman, if she had never known any other man except her husband,” etc. The able attorneys for the defendant argued with great force that this intercourse was going on at least three months before her departure; that criminal statutes should be construed strictly, and the prosecutrix would not be an innocent and virtuous woman as contemplated by the statute. We cannot so hold.
The statute was made to protect the home against the lust and passion of evil men, who subtly, slyly and cunningly would creep into the family circle and poison its fountain source — the woman in the home. Can a man, through fraud, persuasion or deceit, go into a home and seduce the wife, who up to that time was an innocent and virtuous woman, and then abduct or elope with her, and, after having despoiled her — “despoiled of innocence, of faith, of bliss” — claim she was not innocent and virtuous? We do not think he could thus escape the wrong done.
It is a maxim of law, recognized and established, that nullus com-modum capare potest de injuria sua propria (no one can obtain an advantage by his own wrong). Broom’s Legal Maxims, (8th Ed.), p. 279.
In Carpenter v. The People, 8 Barbour’s Supreme Court Reports (N. Y.), p. 603, the statute was, “any unmarried female of previous chaste character”; the evidence was: “It was proved that, after she left home, she had been living, boarding and cohabiting with the defendant; but that was no evidence that she had cohabited or had illicit intercourse with any other person than him. It appeared that the defendant had been in the habit of visiting the said Louisa for a considerable length of time before she left home, as aforesaid, and that, up to the time of her acquaintance and intercourse with the defendant, her reputation for chastity was good.” .The defendant was convicted, and appealed. The Court, in passing upon the meaning of “an unmarried female of previous chaste character,” said: “We think the words referred to do mean actual personal virtue — that the female must be actually chaste and pure in conduct and principle up to the time of the commission of the offense. Not that this must be the ease up to the moment of taking her away for the purpose mentioned, but that it must be so up to the commencement of the acts of the party accused — done with the purpose [414] indicated, and wbicb result in sucb taking away. Tbe process of inveigling and enticing may be tbe work of time, and, wben commenced, tbe female must be of cbaste character in tbe sense above defined.”
In tbe case of South v. State, 97 Tenn. Reports, p. 496, altbougb tbe statute does not use tbe words “innocent and virtuous,” tbe Court, in tbat case, under a statute wbicb provides tbat “any person wbo takes any female from ber father, mother, guardian, or other person having legal charge of ber, without bis or ber consent, for tbe purpose of prostitution or concubinage,” etc., says: “Tbe circuit court charged tbe jury tbat if they found beyond a reasonable doubt tbat tbe girl was living with ber parents a cbaste and virtuous life toward all others except defendant, and tbat defendant wilfully took ber from ber father without bis consent, for tbe purpose of and intending to prostitute ber, then be would be guilty, as charged, altbougb it might appear tbat prior thereto defendant bad bad sexual intercourse with ber. This, we are of opinion, is good law, and in principle is sustained by tbe case of Davis v. Young (90 Tenn., 304), 6 Pickle, 304. Tbe defendant cannot be allowed to take advantage of bis acts in seducing the girl to defend himself for enticing or taking ber away from ber parents and home. It is evident in this base tbat, no matter what ber previous conduct may have been, she bad repented, and at tbe time she went or was carried to defendant’s store, she was attempting, under bis advice and direction, to leave tbe country.” To same effect is S. v. Johnson, supra.
From a careful review of tbe whole record, we can find no reversible error.
No error.