State v. Custer

• Decision Date: 31 January 1871
• Citation: 65 N.C. 339
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JULIA CUSTER.

65 N.C. 339

THE STATE

v.JULIA CUSTER.

Supreme Court of North Carolina.

January Term, 1871.

If there be two statutes relating to the same subject, and the latter contains no repealing clause, and there is no positive repugnancy between them, both may be in force. But, if there be such repugnancy, the latter will operate as a repeal of the former. Hence the Act of 1866, ch. 42, in relation to vagrancy is a repeal of the 43d section of the 34th chapter of the Revised Code, which relates to the same subject, because the two statutes differ materially as to the punishment of the offence of vagrancy, the Revised Code prescribing a fine and imprisonment and security for good behavior, while the Act of 1866, ch. 4, declares that the Court may fine, or imprison, or both, or sentence the party to the work-house.

In the Act of 1866, ch. 42, which prescribes “that if any person who may be able to labor, has no apparent means of subsistence, and neglects to apply himself to some honest occupation for the support of himself and his family, if he have one; or, if any person shall be found spending his time in dissipation, or gaming, or sauntering about without employment, &c., the word “ or,” in the beginning of the second paragraph must be construed “ and.”

An indictment for vagrancy, under the Act of 1866, ch. 42, must charge that the defendant was able to labor, and that he or she neglected to apply him or herself to some honest occupation. And in charging that he or she was endeavoring to maintain him or herself by any undue or unlawful means, it must state what the undue or unlawful means are.

A special verdict, on an indictment for vagrancy, under the Act of 1866, ch. 42, which finds that the defendant “was frequently seen sauntering about and endeavoring to maintain herself by whoring,” entitled her to a judgment of not guilty, as the verdict finds that she was endeavoring to do something wrong, and not that she did it, and the thing she was endeavoring to do, was something immoral only, and not unlawful.

This was an

indictment tried at the last Term of EDGECOMBE Superior Court, before his Honor, Judge Jones.

The indictment charged “that Julia Custer, late of the County of Edgecombe, with force and arms, at, &c., on the 30th day of April, 1870, and constantly from that time to the taking of this inquisition, was found unlawfully sauntering about and endeavoring to maintain herself by gaming or other undue means, with no apparent means of subsistence, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.” Upon the trial, the jury found the following special verdict:

“That the defendant, Julia Custer, on the 30th day of April, 1870, and constantly from that time to the finding the indictment, and for many months next preceding, had no apparent means of subsistence, and wholly neglected applying herself to any honest calling for the support of herself; that during the said period the said Julia Custer was frequently seen idly sauntering about in the County of Edgecombe, and endeavoring to maintain herself by whoring.” Upon this verdict the Court adjudged that the defendant was not guilty, and the Solicitor, Martin, appealed.

Attorney General, for the State .

No counsel, contra .

RODMAN, J.

The subject of vagrancy is governed altogether by statute. There are two of this State which must be considered for the decision of this case. The indictment follows closely the language of S. 43, ch. 34, Rev. Code; and as this differs somewhat from the subsequent act of 1866, (ch. 42, p. 61,) it becomes necessary to inquire whether the latter act is a repeal of the first. The last contains no clause of express repeal; and the rule in such cases is, that if there be no positive repugnancy, it will be held that the Legislature intended that both should be in force. In the description of the offence in the two statutes, there is a slight difference in words, but we can perceive no substantial difference in meaning. Both provide that a Justice of the Peace may issue a warrant and bind the defendant over to Court, where he may be indicted. But the act of 1866 differs from Rev. Code in expressly declaring vagrancy a misdemeanor, and therefore indictable without any preliminary proceedings before a Justice. If it were material, probably, we should so hold under the Revised Code. But as we consider the section in the Rev. Code repealed, it is not material. The most important difference in the two statutes, is in the punishment. By the Revised Code it is required that the convict “ shall be fined, and be also imprisoned for the space of twenty days, and be required to give security for his good behavior for such time as the Court shall adjudge.” Whereas, by the act of 1866, ...