State v. Holder

• Decision Date: 12 October 1910
• Citation: 69 S.E. 66,153 N.C. 606
• Parties: STATE v. HOLDER et al.
• Court: North Carolina Supreme Court

69 S.E. 66

153 N.C. 606

STATE v. HOLDER et al.

Supreme Court of North Carolina

October 12, 1910

Appeal from Superior Court, Wake County; Cooke, Judge.

William Holder and others were convicted of throwing stones at a train, and they appeal. Affirmed.

A question asked accused, testifying in his own behalf, as to whether he had been previously convicted and served a sentence on the roads, is competent to impeach him.

J. C L. Harris, for appellants.

The Attorney General and Geo. L. Jones, for the State.

CLARK C.J.

The defendants were indicted for throwing stones at a train under Revisal 1905, § 3763. Motion was made to quash the bill because the offense charged was not a joint one, and each defendant was entitled to a separate trial. The court in its discretion overruled the motion. This was a matter clearly within its sound discretion, and will not be reviewed by this court except in cases of gross abuse. State v Carrawan, 142 N.C. 575, 54 S.E. 1002; State v Barrett, 142 N.C. 565, 54 S.E. 856; State v. Moore, 120 N.C. 570, 26 S.E. 697; State v. Finley, 118 N.C. 1161, 24 S.E. 495; State v. Oxendine, 107 N.C. 783, 12 S.E. 573; State v. Gooch, 94 N.C. 987; State v. Underwood, 77 N.C. 502; State v. Collins, 70 N.C. 241, 16 Am. Rep. 771. Such motion must be made on the face of the bill, and not upon the evidence. In fact, however, the "rocking" was done at the same time and place, though some of the defendants threw stones at one car and some at another. It was not necessary to show a conspiracy any more than when several persons in a mob are shown to have done illegal acts of the same nature at the same time and place. They are each liable. The proof of conspiracy is necessary only to fix liability upon members of a crowd or mob who are present, but not shown to have committed the illegal act. In such case, if the common design or conspiracy is shown, all parties are liable. It does not appear that the defendants here suffered any prejudice from the refusal to sever, and it was in the interest of the administration of justice in such case to try them together.

There was also a motion to quash on the ground that the bill was vague and uncertain in the charge "from one station to another." The bill followed the statute, and, as a rule, that is all that is necessary. "In all indictments when further information not required to be set out therein is desirable for the better defense of the accused, the court upon motion may, in its discretion, require the solicitor to furnish a bill of particulars of such matters." Revisal 1905, § 3244.

One of the defendants, being on the stand in his own behalf, was asked if he had heretofore been convicted and served a sentence upon the roads. The defendants objected to the question on the ground that the record was the best evidence. The question was for the purpose of impeaching, and was clearly competent. State v. Lawhorn, 88 N.C. 637.

After verdict, the defendants moved in arrest of judgment because the bill of indictment did not contain the word "feloniously." The court denied the motion, and defendants excepted. Indictments for felony must contain the word "feloniously" (State v. Shaw, 117 N.C. 764, 23 S.E. 246; State v. Purdie, 67 N.C. 26), not that it is of any aid or benefit to a defendant, but because it is of long usage, coming down from a remote past, when there was a reason for its use which has long ago ceased. Prior to chapter 205, Laws 1891, now Revisal 1905, § 3291, the line between felonies and misdemeanors was an arbitrary one having no reference to the punishment. For instance, perjury and forgery, though both punishable by imprisonment in the state's prison, were misdemeanors. By that act it was provided that any "crime which is or may be, punishable either by death or imprisonment in the state's prison" are felonies, and all other are misdemeanors. But in the Revisal of 1905 there are five sections--3595, 3613, 3615, 3754, and 3763--(under which this bill is found), which provide that any person violating them "shall be guilty of a misdemeanor and punished by fine or imprisonment in the county jail or state's prison at the discretion of the court." The Revisal must be construed together as one statute, and these sections must therefore be deemed specific exceptions to the general rule laid down in Revisal 1905, § 3291. Doubtless it was an inadvertence in the commissioners not to revise these five sections to conform to Revisal 1905, §...