Aycock v. Gill

• Decision Date: 05 April 1922
• Docket Number: 112.
• Parties: AYCOCK v. GILL.
• Court: North Carolina Supreme Court

111 S.E. 342

183 N.C. 271

AYCOCK v. GILL.

No. 112.

Supreme Court of North Carolina

April 5, 1922

Appeal from Superior Court, Wayne County; Daniels, Judge.

Action by J. J. Aycock against J. E. Gill, for the cancellation of a promissory note. Judgment for plaintiff on admissions in the answer, and defendant appeals. Affirmed.

An agreement by one who had procured the arrest of plaintiff's nephew on a criminal charge to use his influence to induce the court to be lenient is contrary to public policy, and a note given by plaintiff for the amount of defendant's claim in consideration of that agreement is illegal, and cannot be enforced.

Since the concealment of a felony is an indictable offense, which is greatly aggravated by compounding the felony, that it, by an agreement not to prosecute, and, in the case of offenses less than felony, the concealment or compounding, though not indictable, is contrary to public policy, an agreement to stifle a prosecution of any kind is void and unenforceable.

This action was brought for the cancellation of a promissory note for $400 made by the plaintiff to the defendant, upon the ground of duress, and because it was given upon a promise to suppress a criminal prosecution, or to mitigate the punishment of the plaintiff's nephew for the crime of false pretense. The court gave judgment for the plaintiff upon admissions in the answer, holding that the note was not enforceable, but was "invalid, null, and void," as against public policy, and ordered that it be delivered up by the defendant to be canceled.

Plaintiff's nephew, J. D. Hinnant, had been arrested under a warrant of a justice of the peace, issued at the request of the defendant for false pretense. The answer admitted that, at the request of the deputy sheriff and Hinnant, J. E. Gill drove Hinnant and deputy sheriff and police officer from Zebulon, N. C., to Fremont, N. C., in order that Hinnant might arrange for his bond, and not be committed to jail, Gill stating to Hinnant and the deputy sheriff that he would charge the sum of $20 for the round trip; that, arriving at Fremont, Hinnant talked to his uncle, the plaintiff, J. J. Aycock, and to another uncle named Aycock, whose initials this defendant does not now recall; that J. J. Aycock informed the sheriff and the defendant, Gill, that he had raised J. D. Hinnant, and was very much concerned about him; that the plaintiff, J. J Aycock, asked the defendant, Gill, would he release his nephew, Hinnant, if he (the said Aycock) would sign a note guaranteeing the payment of the debt that Hinnant owed the defendant, Gill, which then amounted, including the expense of the automobile trip, to $398.95; that the defendant, Gill informed the plaintiff, Aycock, that he could not agree to discharge his nephew, Hinnant, but that, if the plaintiff Aycock, desired to guarantee the payment of the debt, he, the said Gill, would state to the court that the same had been settled, and would request the court to be as lenient as possible with said Hinnant; that, after some discussion, the plaintiff, Aycock, signed a note, together with said Hinnant, payable to the order of the defendant, J. E. Gill, on December 1, 1920, for $398.95, with interest from its date, July 27, 1920.

The defendant appealed from the judgment.

J. Faison Thomson, of Goldsboro, and W. G. Massey, for appellant.

Langston, Allen & Taylor, of Goldsboro, for appellee.

WALKER J.

The defendant, it is true, denied that there was any duress employed in obtaining the note in question, or that the consideration of it was against public policy, and also denied that he had done anything to stifle a criminal prosecution, and in support of this general denial he stated what was done, which is above set forth. It will not be necessary to inquire if there was any legal duress exercised by the defendant to procure the note, as, if the note is void because the consideration of it is illegal, being against public policy, it is not enforceable, whether obtained by duress or not.

The cases in this court have settled the general principle involved in this case. Blythe v. Lovinggood, 24 N.C. 20, 37 Am. Dec. 402; Garner v. Qualls, 49 N.C. 223; Vanover v. Thompson, 49 N.C. 485; Lindsay v. Smith, 78 N.C. 328, 24 Am. Rep. 463; Corbett v. Clute, 137 N.C. 546, 50 S.E. 216. In Thompson v. Whitman, 49 N.C. 47, it is decided that the concealment of a felony is an indictable offense, and that the offense is greatly aggravated by compounding the felony; that is, "by an agreement not to prosecute or make known what has come to the knowledge of the party." In offenses less than felony, this compounding or concealment is not indictable, but it is, nevertheless, against the policy of the law and the due course of justice, and a court of law will not lend its aid to enforce any such contract or agreement. In Garner v. Qualls, 49 N.C. 223, the same doctrine is held, the court declaring that no executory contract, the consideration of which is contra bonos mores, or against the public policy, or the laws of the state, can be enforced in a court of justice. The consideration there was the compounding, or suppressing, a prosecution for an alleged forgery. The bond was declared void, although the act may never have been, in the view of the law, a forgery. In Ingram v. Ingram, 49 N.C. 188, the court declared that an agreement among persons interested in an estate not to bid against each other at the administrator's sale is void, as being against the public policy. It may be now, therefore, pronounced a settled principle "that contracts founded upon agreements to compound felonies or to stifle prosecutions of any kind" are void, and cannot be enforced. The court said, by Pearson, J., in Thompson v. Whitman, supra:

"His honor was of opinion that the consideration of the bond sued on was not against public justice. In this there is error. According to the view we take of the case, Taylor was not at liberty to take care of his private interest by accepting an indemnity, and thereby depriving the state of an active prosecutor; which is one of the means relied on for the conviction of offenders. The testimony of Taylor, when contrasted with that of Martin before the committing magistrates, in reference to the same transaction, suggests the fear that this douceur had taken effect. When the person directly interested is appeased before the trial, he is under strong temptations to favor the offender."

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