State v. Cale

• Decision Date: 10 March 1909
• Citation: 63 S.E. 958,150 N.C. 805
• Parties: STATE v. CALE.
• Court: North Carolina Supreme Court

63 S.E. 958

150 N.C. 805

STATE v. CALE.

Supreme Court of North Carolina

March 10, 1909

Appeal from Superior Court, Edgecombe County; W. R. Allen, Judge.

Thad Cale was convicted of assault, on an indictment for assault with a deadly weapon, and appeals. Reversed.

Accused notified a justice that he had had a fight and would have to suffer for it, and asked that a warrant against him should be made returnable at noon so that he and his friends might conveniently attend. An affidavit was made at the justice's instance by a person designated as a state's witness, several eyewitnesses were summoned and examined, and the assaulted person, his brothers who were present at the fight, and his father, were notified to attend the trial, delayed for their coming, but they did not attend. Several witnesses who saw the fight were examined, two of them not of kin to accused, but cousins of the assaulted person, and accused was found guilty and fined. Held, that there was no collusion rendering the proceedings void and not a bar to another prosecution.

Defendant entered the plea of not guilty and former conviction; it having been agreed by consent that the two pleas could be heard together. After the evidence was all in, there being no material dispute in same on the question of former conviction of simple assault, it was further agreed that the court should submit the question of assault with a deadly weapon to the jury and take a verdict thereon, subject to the determination of the plea of former conviction by the court as on facts agreed, in case there was a verdict of simple assault only. The jury rendered a verdict of not guilty of assault with a deadly weapon, but guilty of simple assault. Thereupon the court found the facts as to the alleged former conviction, and same seem to be correctly epitomized in the following statement "The defendant had a fight with one Grover Harrell in No. 9 township, on the 14th day of March, 1908. That on the 15th day of March, 1908, the defendant saw J. L. D. Corbett a justice of the peace, and told him that he had a fight and expected he would have to pay for it, and asked that, if a warrant was issued for him, the justice would make it returnable about 12 o'clock m., as he and his hands were at work in the woods and would be at home at that time for dinner. He also gave the names of those present at the fight among which was the name of Silas Crisp, who worked with the defendant, and who is a cousin of the prosecuting witness, Grover Harrell. During the morning Crisp was seen by the justice in the town and required to make the usual affidavit upon which to have a warrant for an affray. The usual warrant was issued, but, while Crisp actually swore to the affidavit, neither he nor the justice signed the affidavit or warrant. There being no constable or other officer in said township authorized to serve process, the justice delivered the warrant to one Walston, directing him to summon the prosecuting witness, Grover Harrell, and also his brother, who was at the fight, and his father, as well as the witnesses for the defendant. Walston went to the house of the prosecuting witness with the warrant, and upon the return reported to the justice that the Harrells said they would not attend. Neither the authority to Walston to execute nor his return were in writing. The defendant was not arrested, but while Walston had gone to summon the witnesses the justice saw the defendant and informed him of the warrant and the time of trial, and the defendant voluntarily attended. The justice delayed the trial until 2 o'clock p. m. to see if the prosecuting witness would attend. He did not appear, and the justice examined several witnesses who saw the fight, two of whom were not related to the defendant, but were cousins of the prosecuting witness. He also examined Dr. C. B. Walton, who had seen and talked with the prosecuting witness since the fight, and, upon the testimony of all these, adjudged the defendant guilty and that he pay a fine of $1 and $6.65 costs. This judgment was in writing and signed by the justice, and was paid. The witnesses examined by the justice were defendant's witnesses in this trial, and the justice who tried him was his friend in the superior court and aided his counsel in the trial, and was surety for his appearance at September term, 1907." Upon these facts the court overruled the plea of former conviction, and, on the verdict of guilty rendered by the jury, imposed a fine of $1, and defendant excepted and appealed.

G. M. T. Fountain, for appellant.

The Attorney General, for the State.

HOKE J.

According to the strict rules of criminal procedure, the pleas of not guilty and former conviction could not be entertained and determined before one and the same jury, and it is further recognized and established that, on a plea of former conviction, when material questions of fact are involved in the issue, as in the case of dispute as to the identity of the parties, the determination of such plea is for the jury but, as shown in a learned opinion by the present Chief Justice, in State v. Ellsworth, 131 N.C. 773, 42 S.E. 699, 92 Am. St. Rep. 790, the plea of former conviction is not treated in many respects as one involving the substantial question of guilt or innocence of defendant, but as one approaching more nearly the determination of a civil issue, and by consent it may be entertained and determined at the same time with a plea of not guilty, and when so...