{
  "id": 8628976,
  "name": "STATE v. TROY FELTON IVEY",
  "name_abbreviation": "State v. Ivey",
  "decision_date": "1949-03-23",
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  "first_page": "172",
  "last_page": "174",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T15:28:13.210119+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. TROY FELTON IVEY."
    ],
    "opinions": [
      {
        "text": "Winbobne, J.\nWhile the record on this appeal presents serious questions arising in the course of the trial in the Superior Court, a fatal \u2022defect 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 \u2022court 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: \u201cIf 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\u2019 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.\u201d 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.\nIn 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 \u201cif 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.\u201d 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: \u201c 'Lewdly and lasciviously cohabit\u2019 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.\u201d\nThus 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, \u201chabitual intercourse\u201d is expressly negatived by the words \u201cand did engage in an act of intercourse.\u201d\n. Judgment arrested.",
        "type": "majority",
        "author": "Winbobne, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorney-General Rhodes for the State.",
      "Everette L. Doffermyre for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. TROY FELTON IVEY.\n(Filed 23 March, 1949.)\n1. Criminal Law \u00a7\u00a7 56, 83\u2014\nWhere the warrant upon which defendant is convicted fails to charge a criminal offense the court acquires no jurisdiction of defendant, and its judgment will be arrested even if the Supreme Court must act ex mero motu.\n2. Fornication and Adultery \u00a7 2\u2014\nThe offense of fornication and adultery is statutory, and therefore the essential elements of the offense must be set forth in the warrant or bill of indictment. G.S. 14-184.\nS. Fornication and Adultery \u00a7 1\u2014\nThe statutory offense of fornication and adultery is the lascivious cohabitation by a man and a woman who are not married to each other, which implies habitual intercourse.\n4. Fornication and Adultery \u00a7 2\u2014\nA warrant charging that defendant did lewdly and lasciviously associate with a woman to whom he was not married and \u201cdid engage in an act of intercourse\u201d with her, fails to charge the statutory offense of fornication and adultery, and judgment against defendant is arrested by the Supreme Court ex mero motu.\nAppeal by defendant from Williams, J., at November Term, 194:8, of HabNett.\nCriminal prosecution begun in the recorder\u2019s court of Dunn, North Carolina, upon a warrant based on affidavit charging that defendant (1) \u201cdid unlawfully and willfully lewdly and lasciviously associate with and did engage in an act of intercourse with Pauline Hodges, not being married to the said Pauline Hodges,\u201d and (2) \u201cdid have in his possession 3% gallons of non-tax paid whiskey for the purpose of sale . . .,\u201d etc.\nThe record discloses :\n(1) That in recorder\u2019s court of Dunn defendant pleaded not guilty as to each charge so made against him, but was found guilty. Pursuant thereto judgment was pronounced, and defendant appealed to Superior Court.\n(2) That in Superior Court \u201cdefendant entered a plea of not guilty to fornication and adultery and illegal possession of non-tax paid liquor for the purpose of sale.\u201d\n(3) That on trial in Superior Court the \u201cjury for their verdict say the defendant is guilty of E & A as charged in the warrant and not guilty of illegal possession of non-tax paid liquor,\u201d upon which judgment was pronounced, \u2014 sentencing defendant \u201cto jail for a term of not less than 20 or more than 24 months to be assigned to work the roads.\u201d\nDefendant appeals to Supreme Court and assigns error.\nAttorney-General McMullan and Assistant Attorney-General Rhodes for the State.\nEverette L. Doffermyre for defendant, appellant."
  },
  "file_name": "0172-01",
  "first_page_order": 228,
  "last_page_order": 230
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