{ "id": 8575206, "name": "STATE v. JOSEPH LANDRUM VANDIVER, JR.", "name_abbreviation": "State v. Vandiver", "decision_date": "1965-09-22", "docket_number": "", "first_page": "325", "last_page": "329", "citations": [ { "type": "official", "cite": "265 N.C. 325" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "37 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "226 N.C. 216", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616488 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/226/0216-01" ] }, { "cite": "118 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626581 ], "opinion_index": 0, "case_paths": [ "/nc/253/0580-01" ] }, { "cite": "158 S.E. 252", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625439 ], "opinion_index": 0, "case_paths": [ "/nc/200/0671-01" ] }, { "cite": "108 S.E. 2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620597 ], "opinion_index": 0, "case_paths": [ "/nc/250/0113-01" ] }, { "cite": "111 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624134 ], "opinion_index": 0, "case_paths": [ "/nc/251/0177-01" ] }, { "cite": "87 S.E. 2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615664 ], "opinion_index": 0, "case_paths": [ "/nc/242/0400-01" ] }, { "cite": "25 S.E. 2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602037 ], "opinion_index": 0, "case_paths": [ "/nc/223/0167-01" ] }, { "cite": "134 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572663 ], "opinion_index": 0, "case_paths": [ "/nc/261/0181-01" ] } ], "analysis": { "cardinality": 441, "char_count": 8500, "ocr_confidence": 0.559, "pagerank": { "raw": 7.851607662663967e-08, "percentile": 0.45876149536131255 }, "sha256": "e970f07df96e41a974f9d3f2d0d0140ac21d597d544fc477f0098f0dbf898500", "simhash": "1:f8f1c4761023af78", "word_count": 1423 }, "last_updated": "2023-07-14T21:31:16.118019+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. JOSEPH LANDRUM VANDIVER, JR." ], "opinions": [ { "text": "PARKER, J.\nBefore pleading to the indictment, defendant moved to quash the indictment on the ground that his legal wife testified before the grand jury that found the indictment here a true bill. Defendant\u2019s daughter also testified before the grand jury. The court denied his motion, and he assigns this as error. This assignment of error is overruled.\nBy virtue of the express provisions of G.S. 8-57, defendant\u2019s legal wife was a competent witness before the grand jury, which was considering an indictment against him charging him with a violation of the provisions of G.S. 14-183, \u201cto prove the fact of marriage and facts tending to show the absence of divorce or annulment proceedings wherein the husband and wife were parties, in cases of bigamy, or in cases of criminal cohabitation in violation of the provisions of G.S. 14-183.\u201d In S. v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334, the Court said:\n\u201cIt is a well-settled principle of law in this State that an indictment will not be quashed, on a motion made in apt time, when some of the testimony before the grand jury given by a witness who is not disqualified is competent and some incompetent, because a court will not go into the barren inquiry of how far testimony which was incompetent contributed to the finding of an indictment as a true bill.\u201d\nDefendant assigns as error the denial of his motion, made before pleading to the indictment, for a bill of particulars. The granting or denial of defendant's motion was within the discretion of the court and is not subject to review, except for palpable and gross abuse thereof. G.S. 15-143; S. v. Lippard, 223 N.C. 167, 25 S.E. 2d 594; S. v. Scales, 242 N.C. 400, 87 S.E. 2d 916. We have examined the record as it relates to the court\u2019s denial of his motion for a bill of particulars, and no abuse of judicial discretion appears. This assignment of error is overruled.\nThere was an indictment against Frances Hall Young charging bigamous cohabitation by her with defendant, in violation of G.S. 14-183. Defendant assigns as error the order of the court, on motion of the solicitor for the State, consolidating for trial this case with the case of defendant for the same offense. This assignment of error is overruled. The court had authority to order the consolidation. G.S. 15-152; S. v. Grundler, 251 N.C. 177, 111 S.E. 2d 1; S. v. Bryant, 250 N.C. 113, 108 S.E. 2d 128; S. v. Combs, 200 N.C. 671, 158 S.E. 252.\nDefendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence. The State\u2019s evidence and defendant\u2019s evidence favorable to the State, considered in the light most favorable to the State, S. v. Avent, 253 N.C. 580, 118 S.E. 2d 47, show the following facts:\nDefendant and Christine Vandiver were lawfully married on 26 February 1943. They lived together as man and wife until defendant in November 1963 left their home in the Dunbar Apartments m the city of Asheville or in the Asheville area, Buncombe County. Three children were born of their marriage. Christine Vandiver is living, and the marriage between her and defendant has not been dissolved by divorce or annulled.\nFrances Hall Young, a married woman, separated from her husband but not divorced, in 1964 lived in the Skyland Apartments in Skyland, Buncombe County. On 14 September 1964 she and defendant were married to each other in Greenville, South Carolina, which would have been punishable as bigamous if entered into in North Carolina.\nAfter Frances Hall Young and defendant were married in South Carolina, they returned to Buncombe County, and Frances Hall Young continued to live in the Skyland Apartments in Skyland. Thereafter until December 1964 defendant went to her apartment practically every evening, and his 1963 blue Valiant station wagon frequently would be parked there all night and was so seen by other tenants of th\u00e9 apartment building. There is plenary evidence, which it would serve no useful purpose to narrate here, tending to show defendant and Frances Hall Young during this period of time had sexual intercourse several times weekly with each other in her apartment.\nG.S. 14-183 makes cohabitation in this State following a bigamous marriage outside of this State, which marriage would be punishable as bigamous if contracted within this State, a separate offense. This is an offense tending to debase and demoralize society and to degrade the institution of marriage. The State\u2019s evidence, and defendant\u2019s evidence favorable to it, would legitimately permit, but not compel, a jury to be satisfied beyond a reasonable doubt that defendant contracted a bigamous marriage with Frances Hall Young in South Carolina, which would have been punishable as bigamous if entered into in North Carolina, and that thereafter they returned to North Carolina and from then until December 1964 they ostensibly lived or dwelled together as man and wife at night in her apartment in Skyland and there several times weekly in her apartment' engaged in sexual intercourse, and that such acts were of a continuing and not a transitory nature. The evidence was sufficient to carry the case to the jury, and the judge correctly denied defendant\u2019s motion for judgment of compulsory nonsuit made at the close of all the evidence. S. v. Setzer, 226 N.C. 216, 37 S.E. 2d 513; 10 Am. Jur. 2d, Bigamy, \u201cD. Sexual Intercourse; Cohabitation,\u201d \u00a7 16; Black\u2019s Law Dictionary, 4th Ed., \u201cCohabit or Cohabitation,\u201d p. 326; 2 Wharton\u2019s Criminal Law and Procedure, Anderson Ed. (1957), Ch. 26, Bigamy, \u00a7 714, p. 523; 14 C.J.S., Cohabitation, p. 1312.\nDefendant has a number of exceptions as to the admission and exclusion of evidence, which he assigns as error. We have examined all of them with care, and all are without merit and are overruled.\nDefendant has no exception to the charge.\nIn the trial below we find\nNo error.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "Attorney General T. W. Bruton, Assistant Attorney General Charles W. Barbee, Jr., and Staff Attorney Leon H. Corbett, Jr., for the State.", "Shelby E. Horton, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE v. JOSEPH LANDRUM VANDIVER, JR.\n(Filed 22 September, 1965.)\n1. Criminal Law \u00a7 78; Bigamy \u00a7 3\u2014\nIn a prosecution for criminal cohabitation in violation of G.S. 14-183, the legal wife of defendant is a competent witness to prove a valid, subsisting marriage at the time defendant contracted the second marriage. G.S. 8-57.\n3. Indictment and Warrant \u00a7 4\u2014\nWhere some of the evidence before the grand jury is competent and some incompetent, a motion to quash the indictment for the admission of incompetent evidence will not be allowed, since the courts will not inquire as to how far the incompetent testimony contributed to the finding of a true bill.\n8. Indictment and Warrant \u00a7 13\u2014\nA motion for a bill of particulars is addressed to tbe discretion of tbe trial court and tbe denial of sucb motion will not be disturbed in tbe absence of a showing of abuse of discretion. G.S. 15-143.\n4. Criminal Haw \u00a7 87\u2014\nTbe trial court bas discretionary authority to consolidate indictments against tbe male and female partners for bigamous cohabitation. G.S. 14-183.\n5. Bigamy \u00a7 2\u2014 Evidence of guilt of bigamous cohabitation held sufficient to be submitted to jury.\nTbe State\u2019s evidence tending to show that tbe male defendant bad a lawful and subsisting marriage at tbe time be contracted a second marriage in another state, that tbe partners to tbe second marriage returned to this State where tbe female continued to live in her apartment, and that tbe male defendant went to her apartment practically every evening and that bis automobile was parked there all night, is held sufficient to be submitted to tbe jury on the question of defendants\u2019 guilt of cohabitation in this State following a bigamous marriage outside the State, which marriage would be punishable as bigamous if contracted within the State. G.S. 14-183.\nAppeal by defendant from Campbell, J., April 1965 Criminal Session of BuNCOmbe.\nCriminal prosecution on an indictment charging that defendant, late of Buncombe County, being a married man, on 14 September 1964 did feloniously contract a bigamous marriage with Frances Hall Young in Greenville, South Carolina, and that the said defendant did feloniously thereafter cohabit with the said Frances Hall Young in Buncombe County, North Carolina, a violation of G.S. 14-183.\nPlea: Not guilty. Verdict: Guilty.\nFrom a judgment of imprisonment with a recommendation that he be placed on work release (G.S. 148-33.1 (a)), defendant appeals.\nAttorney General T. W. Bruton, Assistant Attorney General Charles W. Barbee, Jr., and Staff Attorney Leon H. Corbett, Jr., for the State.\nShelby E. Horton, Jr., for defendant appellant." }, "file_name": "0325-01", "first_page_order": 365, "last_page_order": 369 }