State v. Norman

The State v. Thomas Norman

State v. Norman, 13 N.C. 222 (1829)

Court: Supreme Court of North Carolina · State Highest Courts
Decided: June 5, 1829
Judges: Chief-Justice
Citations: 13 N.C. 222

Cited by 23 1 descriptions by later courts

Headnotes

An indictment on a statute need not negative a proviso which merely witlidi- ws a case from its operation ; aliter Where the proviso adds a qua’ification 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 Jiving at the time of the second marriage, is good, without an averment that the first marriage then subsisted.

Summary

From Guilford. The Prisoner was tried on the last circuit before ids honor Judge. Martin, on the following indictment: “The furors &c. on their oath present, that T. iK late of &c. on &c. in &c. did marry one JU. B. spinster, and tier the said JH. B. then and there had for his wife, ai d that the said T. N, afterwards, to-wit.on &c. v ilh force and arms, in &c. 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. Iris former wife being then alive, and in full life in &c. 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 bis 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 tin's 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 tin* State and the “ prisoner at the bar, Thomas Norman, and having heard “their evidence, both of Jaw and the fact, the Couusd “ for the State and the prisoner, and also the charge of “the CourC returned ¡o the Court (in manner arid form “as the r«..«t"m b) their verdict guilty, when the Court “recorded the verdict in toe words following, to-wit; *» Find fue Defendant Thomas Norman, guilty of the fe- “ lony and bigamy, and of taking to himself a second 4 was in the preterpeHVct.' For which was cited, 9 Finer "• 74. Rex v Lawrence (8 Serg. & Low i 96) —Ventris v. Carter, fFdv. I SO). Robins v, Sanders, fGro, J. 386). 3. That the dates set forth in the transcript were given in figures, when it was proper to give them in words. ■ (2 Hawkins 310. see. 127), 4. H-- contended that the Judge below was right in arresting the judgment, because it was not averred in. the indictment, that the. first marriage was valid and sub fisting at the time of the second. He admitted that an indictment need not negative a proviso contained in a statute upon which it was framed; but he contended that the rale, was different where the proviso modifies the enacting clause, and makes the offence described in- it essentially different from that described in the whole statute. He. contended that the essence of the offence consisted in the fact, that the prisoner had contracted a sc-corn! marriage while tiie first subsisted — nut while the, first wife was alive, and of consequence, that the exist* ■ % ence of the first might, to be averred. For this was cited j%ex v# Sparling (1 Sira. 497). Rex v. Jarvis (Biirn 148). 1 Hawks 22. Rex v. Wheal man (Bong. 345).— And that the precedents of indictments for Bigamy were in accordance. (Duchess of Kingston's case 3 Chitty, c. 2. Jlrclibold's Grim. Pleading 357).

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Chief-Justice

Henderson Chief-Justice.

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 tiie 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 tiie proviso ; but if the case is within the proviso, it is left to the Defendant to show that fact, by way of defence. But in a prov iso of the latter description, the indictment must bring the case within the proviso. For in reality, that which is provided for, in wdiat is called a proviso to tiie art, is part of the enactment itself, if this rase is tested by these rules, it will be found that tiie proviso, whiph exempts from the operation of tiie 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 defence. All the precedents produced are so, except that in tiie Duchess of Kingston's case. The form of the indictment in that case was, Í presume, settled by Lord Tiuirlow, 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, yetas it is *227 an amendment to, and explanatory of the act of 1790, and was designed only to oast 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.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

(describing the two kinds of provisos)

State v. Rankin, 821 S.E.2d 787 (N.C. 2018)

Cited by 23 cases

View all citing references →

State Highest Courts23

Relies on it most ⓘ

State v. Rankin821 S.E.2d 787 (N.C. 2018)
State v. Connor55 S.E. 787 (N.C. 1906) · Dissent
State v. Sturdivant283 S.E.2d 719 (N.C. 1981)
State v. Davis1 S.E.2d 104 (N.C. 1939)
State v. Call28 S.E. 517 (N.C. 1897)
State v. Williams29 S.E.2d 744 (N.C. 1944)

Most recent

State v. Rankin821 S.E.2d 787 (N.C. 2018)
State v. Sturdivant283 S.E.2d 719 (N.C. 1981)
State v. Johnson51 S.E.2d 186 (N.C. 1949)
State v. Williams29 S.E.2d 744 (N.C. 1944)
State v. Williams17 S.E.2d 769 (N.C. 1941) · Concurrence
State v. Davis1 S.E.2d 104 (N.C. 1939)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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