Under the Act of 1805 (Rev., ch. 684), "to prevent vice and immorality," an indictment must charge that the man and woman had not intermarried.
RUFFIN, J.
Every indictment must allege every fact which enters into the constitution of a crime, and must also describe it either by way of specific allegation or conclusion, as some crime known to the law. The general and large term "unlawfully" is too indefinite to satisfy the Court, unless it be used descriptively in a statute. (Hawk., b. 2, ch. 25, sec. 96.) That epithet in the indictment is therefore insufficient. The charge is then one of a man and woman bedding and cohabiting together in his house without an allegation that they had not intermarried, and without applying to such cohabitation the epithet adulterously, or concluding that thereby they committed the crime of adultery. The indictment ought certainly to have alleged such facts as would conclusively show that the cohabitation charged is the cohabitation forbidden by the statute, namely, an adulterous one, which I think can only be done by the express negative affirmation that they thus cohabitated, not being husband and wife, or not being joined together in matrimony; or, perhaps, by the application of the epithet adulterously to it. The indictment must always contain such averments, even beyond the words of the statute, as will bring the case within its true (332) construction. But here the statute calls the crime adultery, which may well make that epithet necessary. But whether it be or not, this indictment is substantially defective for the want of the averments of fact already mentioned.
PER CURIAM. Judgment affirmed.
Cited: S. v. Dickinson, 18 N.C. 351; S. v. Gallimore, 24 N.C. 377; S. v. Lashley, 84 N.C. 755.