State v. Ivey

52 S.E.2d 346, 230 N.C. 172, 1949 N.C. LEXIS 588

• Court: Supreme Court of North Carolina
• Decided: March 23, 1949
• Status: Published

Opinion

Winbobne, J.

While the record on this appeal presents serious questions arising in the course of the trial in the Superior Court, a fatal •defect as to the first count appears upon the face of the record proper. No crime is there charged against defendant. Hence in that respect the •court has not acquired jurisdiction of defendant, and, in such case the judgment must be arrested. And even though there be no motion for the arrest of judgment, this Court will act ex mero motu, that is, of its own motion, where lack of jurisdiction is apparent on the face of the record. This was the procedure followed in S. v. Morgan, 226 N.C. 414, 38 S.E. 2d 166, where the subject is pertinently treated and authorities cited by Barnhill, J. The rule applies in both civil and criminal cases. In Branch v. Houston, 44 N.C. 85, Pearson, J., said: “If there be a defect, e.g., a total want of jurisdiction apparent upon the face of the proceedings, the Court will of its own motion, 'stay, quash, or dismiss’ the suit. This is necessary to prevent the Court from being forced into an act of usurpation, and compelled to give a void judgment . . . So, ex necessitate, the Court may on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceeding.” The principle is recognized and applied in Henderson Co. v. Smyth, 216 N.C. 421, 5 S.E. 2d 136; McCune v. Mfg. Co., 217 N.C. 351, 8 S.E. 2d 219; Edwards v. McLawhorn, 218 N.C. 543, 11 S.E. 2d 562; S. v. King, 222 N.C. 137, 22 S.E. 2d 241; Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E. 2d 644; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E. 2d 617.

In connection with the warrant in the present case, it must be borne in mind that the offense of fornication and adultery is statutory in this State. Our statute, G.S. 14-184, declares that “if any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a misdemeanor; provided, that the admissions or confessions of one shall not be received in evidence against the other.” Therefore, in order to constitute a valid charge under this statute the essential elements of the offense must be set forth in the warrant or bill of indictment. And, in reference to these,- the Court in opinion by Seawell, J., in the case of S. v. Davenport, 225 N.C. 13, 33 S.E. 2d 136, interprets the statute in this way: “ 'Lewdly and lasciviously cohabit’ plainly implies habitual intercourse, in the manner of husband and wife, and together with the fact of not being married to each other, constitutes the offense, and in plain words draws the distinction between single or non-habitual intercourse and the offense the statute means to denounce.”

Thus when the sufficiency of the warrant under which defendant stands charged in the first count is tested by the language of the statute, so interpreted by the Court, “habitual intercourse” is expressly negatived by the words “and did engage in an act of intercourse.”

. Judgment arrested.