State v. Davis
| Decision Date | 22 December 1892 |
| Citation | 16 S.E. 540,111 N.C. 729 |
| Parties | STATE v. DAVIS. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Haywood county; W. A. HOKE, Judge.
F. M Davis was convicted of unlawfully selling spirituous liquors and appeals. Affirmed.
Defendant cannot collaterally impeach the election of the officers of the town in order to question the authority of the mayor, who issued the warrant on which he was arrested, since an acting mayor, whose judicial authority and official character are recognized by the court to which the record is certified, and by the constable and people of the town, is at least a de facto officer, and as such may lawfully take cognizance of any offense which is within his jurisdiction.
The original affidavit and warrant charged the defendant and others with violating a town ordinance forbidding the sale of spirituous liquors in the town of Clyde, which ordinance prescribed that a penalty of $25 should be paid for such sales. On appeal, the judge held that the affidavit, in its original form, showed that a criminal offense, created by a statute embodied in the charter, (the substance of which is quoted in the opinion,) had been committed, and, in the exercise of his discretion, allowed the affidavit and warrant to be amended so as to charge that offense instead of the violation of the town ordinance. The statute referred to (chapter 189, Laws 1889) provided that the punishment should not exceed a fine of $50, or imprisonment for 30 days. The original affidavit was as follows: The warrant was as follows: The amended affidavit was as follows:
G. S. Ferguson, for appellant.
The Attorney General, for the State.
Upon affidavit setting forth that the defendant had been guilty at and in the town of Clyde, in the county of Haywood, on or about the 12th of January, 1892, of "unlawfully and willfully selling spirituous liquors to one J. J. Bowers, the said spirituous liquors not being sold as a medicine, and the said defendants being then and there druggists," the defendant had been arrested and tried before the mayor of Clyde on a charges embodied in said affidavit of violating a town ordinance, which declared it unlawful to sell spirituous liquors in said town. It is not material...
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State v. Poythress
... ... untenable, as the warrant clearly refers to the affidavit ... and called upon the defendant to answer its allegations ... This is all that the law requires in such a case" ... --citing ... State v. Winslow, 95 N.C. 649; State v ... Davis, 111 N.C. 729, 16 S.E. 540; State v ... Sharp, 125 N.C. 634, 34 S.E. 264, 74 Am. St. Rep. 663; ... State v. Yoder, 132 N.C. 1113, 44 S.E. 689. To which ... we add State v. Sykes, 104 N.C. 694, 10 S.E. 191 ... In ... those cases the affidavit, or original charge, was ... ...
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State v. Price
... ... that he received more, at one time and in one package, than ... the law allowed, all of them different offenses, and we held ... that, notwithstanding this the amendment could be made under ... the statute. Revisal of 1905, § 1467. State v ... Winslow, 95 N.C. 649; State v. Davis, 111 N.C ... 729, 16 S.E. 540; State v. Sharp, 125 N.C. 634, 34 ... S.E. 264, 74 Am. St. Rep. 663; State v. Yoder, 132 ... N.C. 1113, 44 S.E. 689; State v. Sykes, 104 N.C ... 694, 10 S.E. 191. As the record now stands, and accepting it ... as importing verity, which we are required to do, in ... ...
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State v. Yoder
... ... 517; State v. Pool, ... 106 N.C. 698, 10 S.E. 1033; State v. Neal, 109 N.C ... 859, 13 S.E. 784; State v. Covington, 125 N.C. 641, ... 34 S.E. 272. "The affidavit and warrant, in ... contemplation of law, are one, if one is referred to by the ... other" (as was here the case). State v. Davis, ... 111 N.C. 729, 16 S.E. 540; State v. Sykes, 104 N.C ... 694, 10 S.E. 191; State v. Sharp, 125 N. C., at page ... 635, 34 S.E. 264, 74 Am. St. Rep. 663 ... The ... defendant places much stress upon the fact that he was ... summoned to work three days consecutively, ... ...
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State v. Yellowday
... ... affidavit were not inserted in the warrant, but this is ... untenable, as the warrant clearly refers to the affidavit, ... and called upon the defendant to answer its allegations. This ... is all that the law requires in such a case. State v ... Winslow, 95 N.C. 649; State v. Davis, 111 N.C ... 729, 16 S.E. 540; State v. Sharp, 125 N.C. 634, 34 ... S.E. 264, 74 Am. St. Rep. 663; State v. Yoder, 132 ... N.C. 1113, 44 S.E. 689 ... The ... third ground for the motion in arrest of judgment is that the ... affidavit does not charge an entry upon the land, ... ...