State v. Pace, 159 N.C. 462 (1912)

May 28, 1912 · Supreme Court of North Carolina
159 N.C. 462


(Filed 28 May, 1912.)

1. Motion to Quash — Plea in Abatement — Court’s Discretion — Appeal and Error — Practice.

■ A plea in abatement or a motion to quash a bill of indictment, made after the plea of not guilty is entered, is only allowed in the discretion of the trial court, which will not be reviewed on appeal.

2. Motion to Quash — Plea in Abatement — Waiver.

One who fails, with full knowledge of the facts, 'to file his plea in abatement in apt time will be deemed to have waived his rights thereto.

3. Seduction — Breach of Promise — Evidence—Testimony of Wife— Corroboration — Interpretation of Statutes.

While the statute provides that “the unsupported testimony of the woman shall not be sufficient to convict” for seduction under promise of marriage (lievisal, sec. 3354), it does not limit or define the character of the corroborating testimony required.

4. Same — Statements Made to Others.

In an action for seduction under a breach of promise of marriage (Revisal, sec. 3354), evidence of .statements made to others that the prosecutrix and the defendant were to be married is competent to corroborate the testimony of the prosecutrix that the defendant had offered and promised to marry her, and with other evidence in this case of his registering 'with her as man and wife at a hotel, his misstatements as to the marriage license and as to his not being a married man, etc., told by her to others before and after the act of seduction, and corroborated by them, is held sufficient for a conviction.

Appeal from Carter, J., at October Term, 1911, of OeaveN.

The defendant was indicted under section 3354 for seduction under promise of marriage. There was a verdict of guilty, followed by judgment sentencing the defendant to the State Prison, from which judgment the defendant appealed.

The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

Attorney-General Bicleeit ancl Assistant Attorney-General Calvert for the State.

Moore & Bunn for defendant.

*463Brown, J.

1. At the conclusion of the testimony of Hen-riette Dougherty, the prosecutrix, who testified for the State, the defendant filed a plea in abatement, averring that the said indictment could not be maintained in the county of Craven, blit should be tried in the county of New Hanover, where the , alleged act of seduction, according to testimony ’of the said witness, occurred. His Honor overruled the plea. The defendant excepted.

The findings of the judge show that at the preliminary hearing of this case when the defendant was bound over, all. of the facts set out in the plea of abatement appeared in evidence, and the defendant was present and represented by counsel. He knew at the time when the indictment was tried and before the jury was impaneled what the testimony of the prosecuting witness would be. He had ample opportunity to file his plea in abatement in apt time.

It is well settled that a plea in abatement or a motion to quash a bill of indictment made after the plea of not guilty is entered is only allowed in the discretion of the court. His Honor declined, in his discretion, to permit the plea to be filed. The exercise of his discretion is not reviewable by us. S. v. Jones, 88 N. C., 672.

Assuming that the county of New Hanover was the proper venue, the defendant, having full knowledge of the facts which the State relied upon, is deemed to have waived the point by not filing his plea in abatement in apt time. S. v. Holder, 133 N. C., 709; 8. v. Woodard, 123 N. C., 710.

2. It is contended by the defendant that there is not sufficient corroborating evidence to the testimony of the prosecutrix. The statute provides that “the unsupported testimony of the woman shall not be sufficient to convict,” but it in no sense limits or defines the character of the corroborating testimony required. That is to be determined by the ordinary rules of evidence.

There are three essentials to a conviction under this statute: First, the criminal act; second, that it was the seduction of an innocent and virtuous woman; and, third, that it was done under promise of marriage. The first is admitted by the de*464fendant; tbe second is proven practically by all tbe evidence in tbe case, and is really not disputed so far as tbe character of' tbe woman is concerned; tbe promise of marriage is testified to by tbe prosecutrix and corroborated fully by ber declarations made before tbe seduction as well as afterwards.

It is settled tbat statements to others tbat tbe prosecutrix and the defendant were going to be married are competent for the purpose of corroborating tbe testimony of tbe prosecutrix tbat tbe defendant bad offered and promised to marry her. S. v. Kincaid, 142 N. C., 657; 8. v. Whitley, 141 N. C., 823.

Tbe evidence tends to prove tbat tbe defendant was a married man working in tbe railroad shops at New Bern, and tbat bis wife and children were living with bis father at Richmond; tbat tbe prosecutrix was employed as a waitress at a hotel, and tbat she first became acquainted with tbe defendant in February of tbat year; tbat she testified positively tbat she did not know tbat be was a married man, and tbat be represented himself as a single man, and repeatedly offered to marry ber; tbat they went on excursions together to Morehead City and other places; tbat they were engaged to be married in January; tbat be told ber tbat be could not wait until January, and desired .her to marry him in August; be called regularly to see ber on Sunday and Wednesday nights; they frequently went out together in public; they went to Wilmington on Sunday to get married, tbe defendant stating tbat be bad prepared to have tbe marriage license ready and tbe marriage take place.

At Wilmington they went to a hotel. Tbe defendant registered as “H. M. Pace and wife”; they were assigned to a room, when tbe alleged seduction was accomplished. Immediately afterwards tbe defendant said tbat there was some miscarriage about tbe marriage license and they would have to go somewhere else to be married. He constantly made excuses, deferring tbe marriage.

All of these details were communicated by tbe prosecutrix to others and corroborated by them after she found tbe defendant could not marry ber. Tbe promise of marriage and tbe attention of defendant to ber were made known to her friends before tbe trip to Wilmington.

*465We think that the evidence corroborates the testimony of the prosecutrix in every particular, and that upon all the evidence the verdict of the jury was well warranted.

It is well settled in this State that when a witness is impeached upon cross-examination or otherwise, and it is necessary to sustain the testimony by corroborative evidence, proof of declarations made to others similar to the testimony given in evidence on the trial may be proved by the witness who made them and the persons to whom they were made. S. v. George, 30 N. C., 324; March, v. Harrell, 46 N. C., 329; S. v. Whitfield, 92 N. C., 831.

In addition to this character of corroborating evidence, we think there is evidence of admissions by the defendant, and of his conduct towards the prosecutrix while he was in jail, which tends to corroborate the charge of the State that the seduction took place under promise of marriage, and the prosecutrix being ignorant of the fact that the defendant was married.

Upon a review of the whole record, we find no error which we think is of sufficient importance to justify us in ordering another trial. We have carefully examined' the remaining, assignments of error, and find them without merit.

No error.