State v. . Sullivan

Supreme Court of North Carolina

State v. . Sullivan

85 N.C. 506

CourtSupreme Court of North Carolina

DecidedOctober 5, 1881

StatusPublished

Cited by3 cases

This text of 85 N.C. 506 (State v. . Sullivan) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Sullivan, 85 N.C. 506 (N.C. 1881).

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Opinion

Rueein, J.

We know of no statute that governs this case ; certainly the act of 1879, ch. 81, does not, for that has exclusive reference to the abduction of children under the age of fourteen years. Neither do we find any authority for such a prosecution as this at common law; and in the absence of all precedent, and from the fact that it has been found necessary, as well in England as in many of the states in the Union, to pass statutes upon the subject, we must conclude that the indictment cannot be supported.

It is true' that in a note to 2 Archbold's Criminal Practice, SOI, to which our attention wTas called by the Attorney General, it is said that the abduction, or the enticing, or carrying away of any person by force or fraud, is an indictable offence at common law; and as authority for the position, reference is made to 1 East P. C., 458, and 1 Russell on Crimes, 569. But upon looking to East, we find no sort of sanction given to such a position. On the contrary, it is there said that by virtue of the general prohibitory clause of the statute of 4 and 5 Phil. & M., ch. 8, an indictment for *508 he abduction of a child will lie by the rule of the common law, which rule, as explained,'is that where a thing is prohibited to be done by a statute and a penalty is affixed to it by a separate and distinct clause, the prosecutor is not bound to pursue the latter remedy, but may proceed under the prior general clause by indictment fora mis'demeanor. Not a single suggestion however is made that such indictment, in the absence of all statutory provision, can be maintained by force of the common law alone.

And still less support is given to the proposition by Russell. He says that the only reported case of a prosecution at common law for such an offence, is that against Lord <Gray, to be found in 9 (8) State Trials, 127. Upon examining into that case, we find it to be, not an indictment for abduction at all, but an information lodged against that lord and five others, by which they were charged with a .conspiracy, the unlawful purpose of which was to entice the Lady PIknbietta Berkley to quit her father’s house and .custody and live in secret adultery. And even in that case the court never proceeded to judgment, but a nolle prosequi was entered after a verdict of guilty, as to all the defendants.

In this state of the authorities, we feel compelled to sustain the judgment of the superior court.

No error. Judgment arrested.

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Rueein, J.

We know of no statute that governs this case ; certainly the act of 1879, ch. 81, does not, for that has exclusive reference to the abduction of children under the age of fourteen years. Neither do we find any authority for such a prosecution as this at common law; and in the absence of all precedent, and from the fact that it has been found necessary, as well in England as in many of the states in the Union, to pass statutes upon the subject, we must conclude that the indictment cannot be supported.

It is true' that in a note to 2 Archbold's Criminal Practice, SOI, to which our attention wTas called by the Attorney General, it is said that the abduction, or the enticing, or carrying away of any person by force or fraud, is an indictable offence at common law; and as authority for the position, reference is made to 1 East P. C., 458, and 1 Russell on Crimes, 569. But upon looking to East, we find no sort of sanction given to such a position. On the contrary, it is there said that by virtue of the general prohibitory clause of the statute of 4 and 5 Phil. & M., ch. 8, an indictment for *508 he abduction of a child will lie by the rule of the common law, which rule, as explained,'is that where a thing is prohibited to be done by a statute and a penalty is affixed to it by a separate and distinct clause, the prosecutor is not bound to pursue the latter remedy, but may proceed under the prior general clause by indictment fora mis'demeanor. Not a single suggestion however is made that such indictment, in the absence of all statutory provision, can be maintained by force of the common law alone.

And still less support is given to the proposition by Russell. He says that the only reported case of a prosecution at common law for such an offence, is that against Lord <Gray, to be found in 9 (8) State Trials, 127. Upon examining into that case, we find it to be, not an indictment for abduction at all, but an information lodged against that lord and five others, by which they were charged with a .conspiracy, the unlawful purpose of which was to entice the Lady PIknbietta Berkley to quit her father’s house and .custody and live in secret adultery. And even in that case the court never proceeded to judgment, but a nolle prosequi was entered after a verdict of guilty, as to all the defendants.

In this state of the authorities, we feel compelled to sustain the judgment of the superior court.

No error. Judgment arrested.

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85 N.C. 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sullivan-nc-1881.

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