Opinion
(June Term, 1841.)
1. The marriage between a free person of color and a white person is, by the law of this State (Laws 1838, ch. 24), null and void; and, therefore, when such persons bed and cohabit together, they come within the provisions of the act of Assembly against fornication and adultery. Rev. St., ch. 34, sec. 46.
2. An indictment ought to be certain to every intent and without any intendment to the contrary. But if the sense be clear and the charge sufficiently explicit to support itself, nice objections ought not to be regarded.
3. An indictment, charging that J. F. did "take into his house one S.C. and they did then and there have one or more children without parting, or an entire separation, they, the said J. F. and S.C., never having been lawfully married," is sufficiently certain, though carelessly expressed. The court must intend from these expressions that the parties were of different sexes.
INDICTMENT against the defendants, tried at Spring Term, 1841, of LENOIR, before Bailey, J. The indictment was in the following words, to wit:
The Attorney-General for the State.
No counsel for defendants.
STATE OF NORTH CAROLINA, } Superior Court of Law, } ss. Lenoir County. } Fall Term, 1840.
The jurors for the State, upon their oaths present, that Joel Fore, late of the county of Lenoir, on the first day of August, in the year one thousand eight hundred and forty, and on divers other days and times before the taking of this inquest, with force and arms, at and in the county aforesaid, did take into his house one Susan Chesnut, and they did then and there live and bed and cohabit together without being lawfully married, contrary to the form of the statutes in such cases made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the State.
And the jurors aforesaid, upon their oaths aforesaid, do further present, that Joel Fore, late of the county aforesaid, on the day and year aforesaid, and on divers other days and times, at and in the county aforesaid, with force and arms, did take into his house (379) one Susan Chesnut, and they did then and there have one or more children, without parting, or an entire separation, they, the said Joel Fore and Susan Chesnut, never having been lawfully married, contrary to the act of Assembly in such case made and provided, to the evil example of all others in like cases offending, and against the peace and dignity of the State.
Upon the trial it was proved that the defendants had, continuously for a year immediately preceding the finding of the bill of indictment, bedded and cohabited together as man and wife, and had one child without parting; and it was admitted by defendants' counsel that the defendant Joel was a free person of color, and the defendant Susan was a white woman. The defendants' counsel offered in evidence a license from the clerk of the county court, authorizing the marriage of the defendants, bearing a date subsequent to the act of Assembly passed during the session of 1838-9, declaring marriages between free persons of color and white persons null and void; and further offered to prove that the marriage was duly solemnized in 1840, prior to the cohabitation. The court rejected this testimony, and the defendants were convicted. Rule for a new trial upon the ground of the improper rejection of testimony. Upon argument, the rule was discharged. Whereupon the defendants' counsel moved in arrest of judgment. This motion was overruled, and judgment pronounced for the State. From this judgment the defendants appealed to the Supreme Court.
The act of Assembly cited in this case declares that all marriages between free persons of color and white persons shall be null and void. The court, we think, very properly rejected the evidence (380) offered of a marriage between these parties after the passage of the act. The license issued by the clerk was void, and no person in this State, at the time mentioned, had a legal authority to solemnize the rites of marriage between the defendants.
Secondly, the defendants moved in arrest of judgment, which motion was overruled by the court. We have examined the indictment, and although it appears to be very carelessly drawn, still we think that the second count in it is sufficient in law. The crime of fornication, as described in the act of Assembly, consists in "a man taking a woman, or a woman a man, into his or her house, and having one or more children without parting or an entire separation, or where they bed or cohabit together, they not being lawfully married." The second count in the indictment charges that "Joel Fore unlawfully did take into his house one Susan Chesnut, and they did then and there have one or more children, without parting or an entire separation, they, the said Joel Fore and Susan Chesnut, never having been lawfully married." First, it is not stated in the indictment that Susan Chesnut is a woman or that Joel Fore is a man. As to Fore, we can see that a male is described, from the words "did take into his house one Susan Chesnut" — the word his being a pronoun of the masculine gender. But it is not so easily seen that Susan Chesnut is a woman. It is a rule of law that all the facts and circumstances which make up the body of an offense must be stated in an indictment with sufficient certainty. The indictment ought to be certain to every intent, and without any intendment to the contrary. But if the sense be clear, and the charge sufficiently explicit to support itself, nice objections ought not to be regarded. 1 Chitty's Crim. L., 172. We admit that no latitude of intention can be allowed to include anything more than is expressed. What is expressed here? It is that Fore "did take into his house one Susan Chesnut, and they did then and there have one or more children without parting or entire separation, they, the said Joel Fore and Susan Chesnut, having never been lawfully married." From what is expressed in the indictment, must not the Court necessarily see that Susan Chesnut is a woman? We think that there cannot be any intendment fairly (381) raised to the contrary. The statement in the indictment that these parties "had one or more children" is an averment that they had at least one child; and that is sufficient, first, to establish the sex of the parties, and, secondly, to constitute the offense created by the statute.
PER CURIAM. No error.
Cited: S. v. Heaton, 81 N.C. 547; S. v. Tytus, 98 N.C. 707; S. v. Christmas, 101 N.C. 755.