
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    The State v. Findley.
    In an indictment under the 4th section of the St. 4 and 5 P. and M. c. • 8, for taking away and deflowering a maid, or woman child, it is not necessary to allege, nor is it necessary to prove at the trial, that she had lands, or goods, &c.; but the offence is-complete under this section of the statute, although she were neither an heiress, nor an heiress apparent. [aide 2 Bay, 418, S. C. State v. O’Bannon, 1 Bailey, 144.]
    particular recital in the preamble will not control the clear and positive words of an enacting clause of a statute. [vide Treasurers v. Lang, 2 Bailey, 430.]
    Motion in arrest of judgment. The defendant was indicted in Edgefield district, on the stat. 4 and 5 P. and M. c. 8, sec. 4, P. L. 60, for having taken away, and deflowered, a certaia maid, or woman child, unmarried, being within the age of sixteen years ; and was convicted thereof. The motion to arrest the judgment, was because it was not stated in the indictment, and proved at the trial, that the maid, or woman child', taken by the prisoner, had lands, or other substances in goods and chattels. And it was argued, that the title and preamble of the statute clearly shew, that only such young girls as were entitled to estates in their own right, independent of their parents, &c., were the persons intended to be protected, and the objects of the act; and that the mischief intended by the act, to be guarded against, was the getting into possession, and keeping, or marrying, such young persons, for the base purpose .of obtaining thereby the property belonging to them. That this .intention is not only apparent, from the title and preamble, but. from different parts of the enacting clauses of the statute ; as- in the third section an exception is made in favor of persons of whom ^anc^s are holden by knights service, where the infant taken, is the tenant; and in the fourth section, where an exception is introduced in favor of such persons !t as by the title of wardship, shall be entitled to have the marriage of such maiden,” &c. And again, in section sixth, where if the maiden, taken away, being above twelve years old, and not sixteen, consents to the marriage made with her ravisher, it is declared, that then her next of kin, to whom the inheritance should descend, See., shall have the lands, <fec,
    It was answered on the other side, that although jt would seem from the style and expressions of the title and preamble of the sta. tpte, that it was meant only to relate to girls having independent estates, yet there is nothing in the enacting clause, in particular, on which the present indictment is framed, to authorise any such limited construction. That all the enacting clauses speak of any rnaid, &c., in general, without relation to the preamble, or any other introductory part of the statute, from whence an inference can - be drawn, to confine the operation of the act to cases where the female, taken, is a person ^having property in her own right. But, at all events, though it should be thought necessary to construe the statute with relation to the title and preamble, yet a distinction may and ought to be made between cases where there shall be a taking only, or a taking and marrying, and cases of taking and deflowering ; for that the public justice of the State, and reason and policy, .made it as necessary, and as proper, that for taking and deflowering, the offender should suffer the same punishment, whether the girl deflowered shall have independent property or not; and that the statute may well be construed to intend this dis-, tinction. That Blaekstpne, in commenting on the statute 3 H. 7, c. 2, (P. L. 42,) and this statute, 4 and 5, P. and M. q. 8,4 Comm. 208, 209, takes no notice pf the circumstance of the woman’s being an heiress, or having an estate, as being necessary in the constitution of the crime ; which so accurate a writer would scarcely have omitted, if necessary. And in 2 Str. 1162, it was decided that a bastard is within the statute.
   The court were of opinion, that the statute does not require -that the woman deflowered, should have lands, or goods, &c. That the crime is equally heinous, if committed on a girl without any estate, as on one ever so rich ; and that the wording of the statute do.es not necessarily require the construction which was‘ urged by the prisoner’s counsel.- Brevard, J., however, doubted, Ihinking the design of the statute was to prevent practices against the persons of females having property, for lucre, and that being a penal law, it ought to be construed strictly; and he wished to have an opportunity to look into the books which treat of this statute: but at length yielded to the opinions of the other judges. So the motion was overruled, and the prisoner was sentenced, by Trezevant, J., who tried the cause, to five years imprisonment.

Egan, for the prisoner. Starke, on the part of the State.

Note. — This section of the statute (the 4th,) extends to any damseí, though she he not heir, or heir apparent, and though she departed with her assent, after the age of twelve years, in which case the common law gave no remedy. See 3 Rep. 39. 14 Vin. Abr. 203. The statute makes the offence punishable in. the star chamber, but there being no negative words to prohibit the court of king’s bench from taking cognizance thereof, the same court had jurisdiction to punish the offence, even before the star chamber court was abolished. See 2 Mod. 130. 14 Vin. 204. 4 Mod. 145. As to the construction of the stat. 3 H. 7 e. 2, against forcible abduction, &c. of women, see 15 Vin. Abr. 296. 12 Rep. 20, 99. 1 Hawk. P. C. c. 42, s. 3. 4 Bl. Com. 208. The preamblp of a statute cannot restrain the enacting part of it, where the enacting-part is clearly larger than the preamble : but if the enacting part refer to the preamble, by the word such, it may be restrained by it. 1 Bl. Rep-659. And although the preamble of an act cannot control the clear and positive words of the enacting part qf a statute, yet it may explain them i'f ambiguous. 4 T. R. 793. [vide Treasurers v. Lang, 2 Bailey, 430.]  