State v. Hyman

• Decision Date: 17 September 1913
• Citation: 79 S.E. 284,164 N.C. 411
• Parties: STATE v. HYMAN.
• Court: North Carolina Supreme Court

79 S.E. 284

164 N.C. 411

STATE v. HYMAN.

Supreme Court of North Carolina

September 17, 1913

Appeal from Superior Court, Edgecombe County; Cline, Judge.

Levi Hyman was convicted of perjury, and he appeals. Judgment arrested.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

G. M T. Fountain & Son, of Tarboro, for appellant.

CLARK C.J.

The defendant was convicted of perjury in the recorder's court of Edgecombe. On appeal to the superior court he was tried on the original warrant and again convicted. The defendant excepted, on the ground that he could not be tried for this offense, except upon a bill of indictment found by a grand jury. He relies upon the provision in Const. art. 1, § 12: "No person shall be put to answer any criminal charge, except as hereinafter allowed, but by indictment presentment or impeachment." Section 13 of the same article, which guarantees the right of trial by jury, is complied with by a jury trial being given on appeal State v. Lytle, 138 N. 0. at page 742, 51 S.E. at page 68. The requirement of an indictment, presentment, or impeachment is not dispensed with, "except as hereinafter allowed," in section 13 in these words: "The Legislature may, however provide other means of trial for petty misdemeanors, with the right of appeal."

The question presented, therefore, is whether perjury is a petty misdemeanor in Edgecombe county. Pub, Loc. Laws 1911, c. 472 provides that the recorder's court "shall have exclusive original jurisdiction of all other criminal offenses committed within the county, below the grade of felony, *** and the same are hereby declared to be petty misdemeanors." Revisal, § 3291, defines the line between felonies and misdemeanors as follows: "A felony is a crime which is or may be punishable by death or imprisonment in the state's prison. Any other crime is a misdemeanor." The state, however, relies upon Revisal, § 3615, which styles perjury a misdemeanor, though it further provides that it may be punished "by a fine not exceeding $1,000 and imprisonment not more than 10 years in the state's prison." There is a palpable contradiction in the two sections, and while the Revisal must be construed together, yet if one provision leads to a conflict with the Constitution, and the other does not, we must take the latter.

At common law perjury and forgery were misdemeanors, it is true; but there was no imprisonment in the state's prison prescribed. Revisal, § 3615, is a statute which was enacted in 1791, and conformed to the common law, which at that time made perjury a misdemeanor, and the words "state's prison" were written into this section in Code 1883, § 1092. The statute which is now Revisal, § 3291, defining the line between felonies and misdemeanors, was enacted in 1991, just 100 years later, and is the latest expression of the legislative will. The words in section 3615 making perjury a "misdemeanor," which was enacted in 1791, evidently retained that definition in Revisal, § 3615 by inadvertence, notice not being taken of the fact that imprisonment in the state's prison, which had been added to the punishment in 1883, made it a felony under Revisal,§ 3291.

In State v. Shaw, 117 H. C. 765, 23 S.E. 246, the court recognized that under Laws 1891 (now Revisal, § 3291) any offense "punishable by death or imprisonment in the state's prison" was a felony, and hence that the word "feloniously" should be used in the indictment for such crimes. In State v. Harris, 145 N.C. 458, 59 S.E. 116, Hoke, J., held that the word "feloniously" was not necessary in an indictment for perjury, not because perjury was not a felony, but because the Legislature had prescribed in Revisal, § 3247, a form of indictment for perjury, in which that word was omitted; and Walker, J., held to the same purport, and on the same ground, in State v. Cline, 146 N.C. 640, 61 S.E. 522.

In State v. Fesperman, 108 N.C. 770, 13 S.E. 14, we held that the measure of "anishment is the test of jurisdiction, and that the Legislature could not confer upon a justice of the peace exclusive jurisdiction of certain offenses, unless it restricted the punishment for such offenses to the limit allowed a justice of the peace. That case has been repeatedly cited with approval. See citations to 108 N.C. 772, in Anno. Ed. For the same reason, while the Legislature can reduce any offense whatever to a misdemeanor, or even to a petty misdemeanor, it can only do so effectively by reducing the punishment to that allowed for such offenses. It cannot authorize punishment by imprisonment in the state's prison for 10 years and yet declare such offense to be a petty misdemeanor.

In State v. Holder, 153 N.C. 606, at page 610, 69 S.E 66, at page 68, chiefly relied upon by the state, it is held that perjury was "still a felony," though the word "fel...