Opinion
December Term, 1852.
1. The act of 1838, chapter 24 (declaring void all marriages between white persons and free Negroes and persons of color), includes only cases where such persons of color are within the third degree.
2. Hence, wherein an indictment for fornication against A. and B. (who had been married), it appeared that one of the defendants was of Indian blood, but of what degree was not proved: Held, that there could be no conviction.
3. In the construction of a statute, all other statutes made in pari materia, whether referred to or not in that under consideration, will be taken as one system, and so construed.
(The case of S. v. Bell, 25 N.C. 509, cited and approved.)
THIS was an indictment for fornication, tried before his Honor, Judge Bailey, at the Fall Term, 1852, of STANLY Superior Court, The defendants pleaded not guilty, and in support of their plea offered evidence of their having been lawfully married, unless, as was insisted by the solicitor for the State, the marriage was void under the act of 1838-39, declaring marriages between white persons and free persons of color void. The controversy was concerning the color of the male defendant — the female being admitted to be white. For the defendants it was insisted, that, unless the defendant, Melton, was within the fourth degree of Negro or African blood, they could not be convicted. For the State, it was insisted that the act was general, prohibiting all mixtures of the white with the colored races, and it made no difference whether the defendant's blood was African or Indian, or in what degree, if there was any sensible taint of either — they were guilty. The court charged for the defendants, but told the jury they might, if they chose, render a special verdict; and the jury accordingly found, "that the defendant, Harris Melton, was of Indian blood, but in what degree they (50) could not say, and if in case this rendered the marriage void, of which they were ignorant, but prayed the opinion of the court, they found the defendants guilty; and if not, then they found the defendants not guilty." His Honor being of opinion upon the question of law in favor of the defendants, gave judgment accordingly, and the solicitor for the State appealed.
Attorney-General for the State.
Winston for defendants.
The indictment in this case is found in the act of 1838, chapter 24, in which it is declared: "It shall not be lawful for any free Negro or person of color to marry a white person; and any marriage hereafter solemnized or contracted between any free Negro or free person of color and a white person, shall be null and void." All persons living together under such circumstances, as man and wife, are guilty of fornication and adultery. It is admitted that Melton is of Indian descent, and that the defendant, Byrd, is a white woman; and that at the finding of the indictment, they were living together as man and wife; and they allege that they were legally married. The legality of the marriage is the only question presented by the case. On the argument here, it was urged with much force that the act did not embrace persons descended from Indian ancestors. Upon this point we do not deem it necessary to express an opinion, because the special verdict states, "that the defendant, Melton, is of Indian blood, but in what degree they cannot say." This is substantially finding simply that Melton is of Indian blood. To authorize a judgment upon this indictment, the jury should have found within what degree he stood to his Indian ancestor. The act, it is true, is broad; but it cannot be supposed it was the intention of the Legislature to forbid marriages between white persons and persons of Indian blood, howsoever far removed. Every statute must receive a reasonable construction, and its letter is often departed from to carry out the manifest intention of the lawmakers; and to arrive at a proper construction, when the words are doubtful, it is the duty of courts of justice to examine and compare the different parts of the same statute, and with others made (51) in pari materia. At the session of the Legislature in 1836, all the acts previously in force were reenacted, and they consequently constitute but one act. S. v. Bell, 25 N.C. 509. By the 5th section of 71st chapter of that statute, the Legislature provides: "If any white man or woman, being free, shall intermarry with any Indian, Negro, mustee, or mulatto man or woman, or any person of mixed blood to the third generation, bond or free, he shall, by the judgment of the county court, forfeit $100," etc. The sixth section inflicts a penalty upon any minister of the Gospel or magistrate who shall knowingly marry such persons. By these two sections it is seen that a penalty merely is inflicted for a violation of them. It was soon found that the evil was not remedied. The parties still continued man and wife, and to live together as such. To put an end to this state of things, the act was passed under which this indictment was framed. The marriage itself is declared void, thereby subjecting the parties to the risk of being indicted for fornication and adultery, as long as they continued to cohabit. This act is in pari materia with that of 1836; and the Legislature must have intended that the degrees set forth in the latter should govern the criminality of the former. It could not have been intended that the most remote taint of Indian blood on either side should make void the marriage, while it confined the penalty expressed in the act of 1836, to being violated in the third degree. Again: in the 31st chapter of the act of 1836, in section 81, the Legislature declare the evidence of all Negroes, Indians, mulattoes, and persons of mixed blood, within the fourth generation, to be incompetent against a white person. In two cases, then, the Legislature has pointed out the degree within their prohibition shall operate, and when, in 1838, they extended the penalty inflicted in the fifth section of the 71st chapter of the act of 1836, they must have meant that the offense, so punished, should be the same offense — that is, should be a marriage within the degrees specified in the act of 1836. It is a rule in the construction of statutes, that all statutes which relate to the same subject-matter, although some of them may be expressed, or not referred to, must be taken to be one system, and so construed; 1st Bur., (52) 447; 3 Mass. R., 212; Lord Bacon's 3d Rule, Vol. 6, 382. To enable the court to pronounce a judgment upon the special verdict against the defendant, it ought to have stated within what degree the defendant, Melton, was removed from his Indian ancestor. It does not do so; on the contrary, the jury say they do not know.
There is no error in the judgment of the court below, and it must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Simonton v. Lanier, 71 N.C. 503; Rhodes v. Lewis, 80 N.C. 139; Muller v. Commissioners, 89 N.C. 172; S. v. Partlow, 91 N.C. 550; Hughes v. Boone, 102 N.C. 163; Greene v. Owen, 125 N.C. 219; Abernathy v. Commissioners, 169 N.C. 641; Alexander v. Lowrance, 182 N.C. 644; Corporation Commission v. Interracial Commission, 198 N.C. 323.