State v. Davis

• Decision Date: 15 December 1891
• Citation: 14 S.E. 55,109 N.C. 780
• Parties: STATE v. DAVIS.
• Court: North Carolina Supreme Court

14 S.E. 55

109 N.C. 780

STATE v. DAVIS.

Supreme Court of North Carolina

December 15, 1891

Appeal from superior court, Ashe county; BYNUM, Judge. Affirmed.

John W Davis was convicted of bigamy, and appeals.

Acts 1889, c. 559, providing for a quadrennial instead of an annual revision of the jury list, does not affect the rule that a person is not disqualified as juror for not having paid taxes for the fiscal year during which the trial is had.

George W. Bower, for appellant.

The Attorney General, for the State.

CLARK J.

The challenge to the juror was properly overruled. The cause was tried at August term, 1891, of Ashe superior court. The regular jurors were therefore drawn from the list revised by the commissioners at their session on the first Monday in September, 1890. They could not then have thrown out a juror for "not having paid his taxes for the fiscal year ending June, 1890," since that tax-list did not even go into the sheriff's hands before such meeting in September, 1890. Acts 1889, c. 218, § 39. The commissioners of the county were required to revise the list in September 1890, by selecting the names of such persons of good moral character, and of sufficient intelligence, as shall "have paid tax for the preceding year," i. e., the tiscal year ending June, 1889. This has often been decided. State v. Carland, 90 N.C. 668; State v Haywood, 94 N.C. 847; Sellers v. Sellers, 98 N.C. 13, 3 S.E. Rep. 917; State v. Gardner, 104 N.C. 739, 10 S.E. Rep. 146. Act 1889, c. 559, cannot affect the case, whether that act, which provides for a quadrennial instead of an annual revision of the jury-list, be held not to take effect till 1892, or shall be construed to also forbid annual revision between the date of the act and 1892; since, in the latter case, it would merely make the revision of 1888 valid till 1892, and could not disqualify a juror for not having paid his taxes for the fiscal year 1890.

The second, third, and fourth prayers for instructions, which were refused, each contained the proposition that the defendant could not be convicted unless the jury was satisfied beyond a reasonable doubt that the magistrate who solemnized the first marriage was "a duly appointed qualified, and acting justice of the peace." They were therefore properly refused. It was sufficient to show that such justice was a de facto officer. It was not essential to show that he was "duly appointed and qualified." There was therefore no error in refusing the fifth prayer, as to the presumption of such magistrate being out of office, until shown he was again "lawfully inducted into office." In State v. Robbins, 28 N.C. 23, which was an indictment for bigamy, it is said: "In the case of peace-officers and justices of the peace, it is sufficient to prove that they acted in those capacities, even in case of murder." In that case, as in this, the marriage was solemnized by a person who had been acting openly and notoriously before and after the marriage as a justice of the peace, and it was held that it was to be taken that he was at such time a justice, "until the contrary be shown." In Burke v. Elliott, 26 N.C. 355, it was said by RUFFIN, C.J.: "Hines, whether regularly appointed or not, was acting in the office of constable at the time, and had been for six months before, and therefore his acts in office were valid. It is a setted principle that the acts of officers de facto are as effectual, as far as the rights of third persons or the public are concerned, as if they were officersde jure. The business of life could not go on if it were not so." In Gilliam v. Reddick, in the same volume, (page 368,) the same eminent judge speaks of this principle as "a well-settled and ancient rule of law." These cases have always been followed, and never questioned; but we need not quote further than the recent case of State v. Lewis, 107 N.C. 967, 12 S.E. Rep. 457, and 13 S.E. Rep. 215, in which the subject was reviewed, with a wealth of authorities, by Mr. Justice AVERY. In the present case, the evidence of the alleged justice having acted as such openly and notoriously for a long period before and after the marriage was plenary and uncontradicted. The evidence offered by the journals of...