State v. Johnson

• Decision Date: 19 November 1924
• Docket Number: (No. 418.)
• Citation: 125 S.E. 183
• Court: North Carolina Supreme Court
• Parties: STATE. v. JOHNSON.

125 S.E. 183

STATE.

v.JOHNSON.

(No. 418.)

Supreme Court of North Carolina.

Nov. 19, 1924.

(188 N. C.)

Appeal from Superior Court, Anson County; Shaw, Judge.

T. C. Johnson was convicted of violation of compulsory school attendance law, and he appeals. Reversed, and new trial ordered.

The action is intended as a prosecution under the compulsory school attendance law, C. S. 5758, etc., and thus far the only charge appearing in the record against defendant, and on which he was convicted, is contained in the justice's warrant, which is as follows:

"To the Constable or Other Lawful Officer of Anson County—Greeting: Whereas, complaint has been made to me this day, and on the oath of Miss Mary Robinson, that T. C. Johnson, did, on the fall day of 1923, January, 1924, unlawfully and willfully, with force and arms, at and in the county aforesaid, T. C. Johnson being the father of certain children between the ages of seven and fourteen has failed or refused to send the same to the public school of his district as required by the laws of North Carolina, contrary to the statute made and provided, and against the peace and dignity of the state. Vivian Johnson, aged 7 years, Fannie Johnson, aged 9 years, Rachel Johnson, aged 11 years, Flora Johnson, aged 13 years, these are therefore to command you, to forthwith apprehend the said T. C. Johnson and him have before me at my office in Wadesboro township, on the 29th day of January, at 3 p. m., 1924, then and there to answer to the said charge, and be dealt with according to law.

"Given under my hand and seal this 25th day of January, 1924.

"J. E. Gray, J. P. [Seal.]"

Cause, having been removed on affidavit, was heard before M. W. Gaddy, justice of the peace in the county. Defendant convicted and appealed to the superior conrt. On calling cause, defendant demurred to the warrant and moved to quash same, in that it failed to charge criminal offense. Motion overruled and defendant excepted. On plea of not guilty and evidence submitted, defendant was convicted in the superior court, and from judgment thereon excepted and appealed, assigning errors, among them:

(1) The refusal to sustain his demurrer and motion to quash.

(2) Several exceptions made by him to the charge of the court.

Brittain & Brittain, of Ashboro, and M. C. Lisk, and A. A. Tarlton, both of Wadesboro, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

HOKE, C. J. The statute on which the prosecution is based, C. S. § 5758, is as follows:

"Parent or Guardian Required to Keep Child in School; Exemptions. —Every parent, guardian, or other person in the state having charge or control of a child between the ages of eight and fourteen years shall cause such child to attend school continuously for a period equal to the time which the public school in the district in which the child resides shall be in session. The principal, superintendent, or teacher who is in charge of such school shall have the right to excuse the child from temporary attendance on account of sickness or distance of residence from the school, or other unavoidable cause which does not constitute truancy as defined by the state board of education."

And the penalty imposed, contained in section 5761, is a fine of not less than $5 nor more than $25.

It will be noted that the statute does not make the failure to cause the attendance of children in the public schools a crime, but defines the offense as the failure on the part of the parent or guardians having control of children of the specified ages to cause them to attend "school" continuously for aperiod equal to the time the public schools of the district shall be in session.

In the warrant defendant is charged only with a failure to cause attendance in the public schools, and does not therefore contain the charge of a criminal offense, and should have been quashed or amended so as to state properly and sufficiently the charge insisted upon by the state.

In Clark's Criminal Procedure, p. 259, the principle is stated as follows:

"It is the rule that all indictments upon statutes must state all the facts and circumstances which go to make up the offense as defined in the statute, so as to bring the defendant precisely within it. 'I take it for a general rule, ' it is said by Hawkins, 'that, unless the statutes be recited, neither the words "contra formam statuti" nor any periphrasis,...