#### THE STATE vs. ALBURTUS L. WATTS.

On an indictment for marrying a female infant under the age of fifteen years, where the defendant relies upon the Statute of limitations as to prosecutions for misdemeanors, Rev. Stat. ch. 35, sec. 8, proof that the marriage was by consent of the mother and was solemnized by a minister of the gospel in the presence of six or seven persons, and that the parties lived together afterwards, openly, as man and wife, shall protect the defendant from the operation of the proviso, that the offence was committed in secret.

So where the parties went to an adjacent County to be married and after-wards returned to the County oi their domicil, where they lived together as man and wife, the fact being known to the community, and the defendant continuing in the open exercise of his duties as a minister of the gospel, it cannot be held that he absconded from the County, in which hé was married, or concealed himself, so as to bring his case within the operation of the second part of the said proviso.

A special verdict is defective which finds only the evidence, from which facts may be inferred. It must find the facts themselves.

It is not necessary nor convenient to introduce, in an indictment for a misdemeanor, to which the statute of limitations applies, averments, with the view of taking the case out of the statute, by bringing it within the proviso.

The case of Shutt v. Carloss, 1 Ire. Eq. 233, cited and approved.

Appeal from the Superior Court of Law of Person County, at the Fall Term 1849, his Honor Judge Settle presiding.

The indictment is for marrying one Mary Williams, she being a female infant under the age of fifteen years, and her father not then living. It was found in May 1849, and contains two counts ; both of which state the marriage to have been in Person County, on the 18th day of February 1832. The first count states further, that, on the said day of the marriage, the defendant absconded from that County and had not since returned to it up to the finding of the bill. The other count charges, that the *370marriage was in a secret manner, and that the offence was not discovered by the jurors until the day of finding the bill.

Upon not guilty pleaded, a special verdict was found, which, as far as it is material, is to the following effect and substance : that on the 18th day of February 1833, the defendant and Mary Williams were inhabitants of Caswell County, and entered into,an engagement to in* termarry: that the father of the said Mary was then dead, and that she was an infant under the age of fifteen years and resided with her mother, who was then a widow and gave her written assent, that the marriage should then be had : that on the 17th day of February 1S32, the defendant applied to the Clerk of the County Court of Caswell for a license for the marriage between himself and the said Maty, and the said Clerk refused to issue it in consequence of information that she was under fifteen years of age, which he received from a near relation of the said Mary : that such was made known to the said Mary and her mother, and that it was thereupon agreed between the defendant and the said Mary, with the knowledge and approbation of her mother, and of several other near relations of the said Mary, that they would go to the house of one Jones in the County of Person, and there obtain a license and get married ; and that, in pursuance of that agreement, the defendant and the said Mary, accompanied by one Lewis, an uncle of the said Mary, and three other persons, in the night of that day left the residence of the said Mary and her mother in Caswell County and went to the house of the said Jones in Person County, and there, about two hours by sun, in the morning of the ISth day of February 1832, they obtained a license from the said Jones, who was a deputy Clerk of Person County Court, and were married by a preacher of the Methodist denomination, wbo lived in Person, in the presence of the said four persons, and one *371Howard, and the said Jones and his family, the said Mary being then under fifteen years of age : that the defendant at the time of the marriage was, and for some months before had been, a preacher of the Presbyterian denomination and was settled as the minister of two congregations in Caswell County, and that the place of worship of one of the congregations was near the line of Person -Count}’, and several members of the congregation were inhabitants of Person : that, after the marriage and on the same day, the defendant returned to his place of residence in Caswell with his wife, and the said marriage became generally .known there, and the defendant and the said Mary lived in Caswell as man and wife, and, until the death of the said Mary, which happened in October 1832, the defendant continued to be the minister of the said two congregations and habitually preached to them, and was generally accompanied to those places of worship by his wife : that in the year 1832, after the said marriage, the defendant also preached several times to congregations at the dwelling house of one Walton in Person County, and during that year and 1833 passed several times through that County on his way to large religious meetings in the County of Granville and in the County of Halifax in Virginia, near the lines of Person, and on those occasions the defendant visited his friends and staid several nights in succession in Person, and the said marriage was generally talked of in Caswell, Gran-ville, and elsewhere : that since that time the defendant has continued a minister and has served as the pastor of several congregations in divers Counties in the State, other than Person ; and that his places of residence have been notorious. The special verdict also finds, that at the time of the marriage, the mother was entitled to cer-* tain slaves and other chattels during her life, and that the said Mary was entitled to the same in remainder after the death of her mother ; and that her mother was the *372next of kin of the said Mary at her death, and the said mother died in March 1848, and that, thereupon, the defendant administered on the estate of the said Mary and claims the said slaves and chattels from the person, with whom the mother intermarried after the said marriage. Upon the verdict judgment was given for the defendant, and the Solicitor for the State appealed.

The Attorney General, Graham and E. G. Reade, for the State.

Kerr and Norwood, for the defendant.

Ruffin, C. J.

The record contains two exceptions on the part of the State to the admission of evidence offered by the defendant. The first was as to the written assent given by the mother ; which was received to rebut the allegation of secrecy. The other was as to the evidence of the defendant’s continued residence in other parts of the State besides Person, and of the notoriety of the marriage, and of the defendant preaching publicly in Counties adjoining Person.

The guilt of the defendant in contracting marriage with a female of tender years, contrary to the statute, seems to be established. Indeed, it was not contested. Supposing the indictment sufficiently' states the corpus delicti, without averring that the father had not given his consent in writing, as well as his death, the Court is of opinion the judgment was properly rendered for the defendant upon the special verdict, by force of the act limiting the time in which prosecutions for trespasses and misdemeanors shall be commenced. Two years from the commission of the offence is the period prescribed ; and the grand jury is forbidden to find an indictment, where the offence was committed longer than that period before the bill found. That is subject to two provisos : the one, that, if the offender shall abscond from the County, in which the offence was committed, or conceal himself, *373or the offence shall be committed in a secret manner, then the two years are allowed after the return or apprehension of the offender, or the discovery of the offence : And the second, that when a prosecution shall be commenced in due time and judgment shall be arrested or a nolle prosequi be entered, the two years shall be compu • ted from the termination of the first prosecution.

It is to be remarked, in the first place, that, as seventeen years elapsed between the offence committed and the bill found, the prosecution is barred unless the special verdict find the facts, which, according to the provisos, remove or suspend the bar arising from the time. Here, that is not done ; for, the verdict sets forth divers matters of evidence, from which it was argued and inferred, that the marriage was secret, and that the defendant absconded or concealed himself, instead of finding directly, as it should have done, the secrecy, absconding, or concealment. It is common learning, that a verdict is defective, which finds only the evidence; since the Court cannot draw7 inferences of fact, but only apply the law to facts agreed or found. To authorise judgment for the State, therefore, on the verdict, it ought to have contained direct findings of the necessary facts.

But the case, as we think, is for the defendant, not merely upon the ground of the defects, above spoken of, in the frame of the special verdict, but also because, in truth, the evidence spread out in the verdict would not, in point of law authorise the finding of either of the necessary facts of secrecy, absconding, or concealment. Probably the principle of construction, which was applied to the severe statute of 21 Jac. 1, (making it evidence of murder in the mother of a bastard to conceal its death by-secret burying,) whereby the case was taken out of the enactment, if the mother called for help, or confessed herself with child to even one person, ought not to be adopted, in interpreting the terms “secret” and “conceal” in this *374act. But we hold very clearly, that this marriage cannot be deemed secret — celebrated, as it was, with the knowledge of the feme’s mother and in the presence of her uncle and other near kins folks, and other persons to the number of seven at least, and by a minister of the gospel with license regularly granted, and, of course, appearing of record. There is a case in point. It is Hicks v. Gore, 3 Mod. 84, founded on the statute of 4 and 5 Ph. & M. ch. 8, to prevent children from being seduced from their parents and married in a secret way; and it was held, that a marriage, openly solemnised in church in canonical hours, in the presence of many persons, was not within the act. This ease is cited with approbation by Mr. East, 1 Cr. L. 457. This marriage was not only solemnised openly, but was immediately declared to the friends of the wife and the public generally, and was not only notorious from such declarations, but the parties cohabited and were generally known as man and wife. There is, moreover, not a circumstance of concealment by the offender, mor,e than there is of secrecy’ in the offence. He always appeared openly in society'', and, as a preacher in a numerous denomination, often exhibited himself! in company’ with his wife, to large assemblages of the members of his church and others. It is true he left the County of Person on the day of the marriage, but not as a fugitive, or to the intent to escape public observation or evade the process of the law. On the contrary, he left Person to return to the settled place of residence both of himself and his wife ; and, besides, habitually met citizens of that County at his church, and during two years frequently passed through the County, preached in it, and visited and sojourned there.

It was, however, said at the bar, that the policy of the act of 1820 forbids a limitation on a prosecution for the marriage, as the consequence will generally be, that all the benefits intended for the seduced wife and her issue *375will be lost. It may, indeed, often happen that the husband will acquire all the rights in his wife’s property, which he would have had, if he had not violated the law; since the act is so framed, that the Court has been obliged to hold in Shutt v. Carloss, 1 Ire. Eq. 233, that he forfeits his right of property, not by the offence, but by the conviction. But that cannot prevent the application of the limitation, to this as to all other "trespasses and misdemeanors.” Those terms are general, and they embrace all offences except felonies and the misdemeanors express? ly enumerated in the act, namely, perjury, forgery, malicious mischief, and deceit, and such others as may by particular statutes have special limitations of their own. As far as the civil rights of the husband and wife are concerned, it will be easy for the Legislature to provide, if it should be thought meet, by preventing any of her property vesting in him. But it is impossible, for the sake of advancing the pecuniary interest of the wife, to hold that her husband may be prosecuted at any distance of time, in the teeth of a statute, which imposes a limitation of two years upon prosecutions for all offences below felony, except the four aggravated misdemeanors enumerated in the act.

It is unnecessary to sa"y anything upon the exceptions to the admission of the evidence, since, if it were wrong, the judgment could not be reversed, inasmuch as the State cannot have a venire de novo, except for a mis-trial, technically speaking, nor have an appeal, except where the Court below improperly refuses to give a judgment for the State upon a general or special verdict.

It is, perhaps, proper that some notice should be taken of the introduction of averments into the indictment, with the view of taking the case out of the Statute of limitations, by bringing it within the proviso. We think it unnecessary and inconvenient. The act does not require a change in the frame of indictments; and this is the first *376instance, in which such averments have come under our observation. As the accused, according to the general rule, may avail himself of the statute on not guilty, and without a special plea, it follows that his defence may in like manner be repelled on the part of the State. It is not like a provision in a statute, which enters into the description of an offence, and must, therefore, appear in the indictment. But it is matter of defence a rising out of an independant enactment, on which the defendant may insist, upon evidence ; and that opens the matter to the State without any express averment. It is true, the indictment lays the offence more than two years before this bill found. But that cannot alter the rule, because it cannot be told, but that the defendant absconded or concealed himself,or that anotherprosecution was brought in due time so as to authorise a second bill under the second proviso ; and, as the defendant could insist on the time in defence, it is to be presumed, after a conviction by general verdict, that the case was brought within the proviso. This, indeed, does not affect the present case ; Í» which, for the other reasons already stated, the judgment must be affirmed.

Per Curiam.

Judgment affirmed.