State v. Keith
| Decision Date | 31 January 1869 |
| Citation | 63 N.C. 140 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. JAMES C. KEITH. |
In a case where a prisoner moved a Court for a discharge on the ground that his offense was within the provisions of a certain Amnesty act, and such allegation was admitted by the Solicitor for the State: held, that even if the act required a plea, in order to show its application to the case before the Court, the record exhibited a substantial compliance with such requirement.
The Ordinance of 1868, ch. 29, repealing the Amnesty act of 1866, ch. 3, is substantially an ex post facto law, inasmuch as it renders criminal what before its ratification was not so, and takes away from persons their vested rights to immunity.
( State v. Cook, Phil. 535 and State v. Blalock, Ib. 240, cited and approved.)
MOTION to discharge a prisoner, heard before Cannon J., at Fall Term 1868 of the Superior Court of BUNCOMBE.
The prisoner was held under seven different charges of murder. The case stated that this was an indictment for the murder of Roderic Shelton, in Madison county in 1863, and had been removed for trial to Buncombe upon affidavit of the prisoner. The defendant by his counsel, moved the Court for his discharge, upon the ground that he was acting as an officer in the Confederate States' military service when the alleged homicide took place, and he alleged that his case came within the provisions of the Amnesty act of 1866-'67. It was admitted by the Solicitor that the case came within that act, but he submitted that that act had been repealed by an Ordinance of the Convention of 1868.
The Court being of opinion that the Amnesty act had been repealed, declined to allow the motion, and the prisoner appealed.
Phillips & Battle, for the appellant .
A general amnesty act need not be pleaded. United States v. Wilson, 7 Pet. 150; 3 Bl. 401; State v. Blalock, Phil. 242. A prisoner cannot even waive its benefit, Hawk. P. C.
An amnesty act is irrepealable. By comparing the entry of a plea of Parliamentary pardon, in 3 Co. Inst. 234 with that of pardon by the Crown, in Co. Ent. 356, it will be seen that the former is an acquittal. Such acts are remnants of the ancient jurisdiction of Parliaments and Legislatures to try offenders. Our Constitution forbids attainders, but leaves the right to acquit.
This case shows that the definition of ex post facto laws in Calder v. Bull, 3 Dall. 386, does not cover all varieties of such legislation; the Ordinance in question plainly violating that prohibition.
It also violates the XIV Article, recently adopted, as regards the prisoner's immunities.
When a law is a contract, a repeal of it cannot take away a vested right. The Binghamton Bridge, 3 Wall. 51.
Attorney General, contra.
As several other indictments against the prisoner are somewhat loosely referred to in the transcript of the record sent to this Court; it is proper to say, that the indictment against him for the murder of Roderick Shelton, is the only one which appears to have been adjudicated in the Superior Court, and it is the only one which is in this Court. Our decision, and the observations made in this opinion are confined to that case.
Two questions arise on the record, and have been argued by counsel:
1. Did the prisoner, in a regular manner, claim the benefit of the Amnesty Act of 1866-'67, ch. 3, p. 6?
2. How was he affected by the repeal of that Act by the Ordinance of 1868, ch. 29, p. 69?
We have considered the case with the care which its importance deserves.
Section 1, of the act of 1866 contains a full and unequivocal pardon for all “homicides and felonies” committed by officers or soldiers of the late Confederate States, or by officers or soldiers of the United States, “done in the discharge of any duties imposed on him, purporting to be by a law of the State or late Confederate States Government, or by virtue of any order emanating from any officer, &c.”
Section 2 enacts: “That in all cases where indictments are now pending, either in the County or Superior Courts, if the defendant can show that he was an officer or private in either of the above named organizations at the time, it shall be presumed that he acted under orders, until the contrary shall be made to appear.”
The prisoner alleged that his case came within the provisions of that act, (see State v. Cook, Phil. 535,) and moved his discharge. The solicitor admitted the allegation of fact. If a formal plea were necessary, we should be compelled, from the practice which has prevailed universally in this State, to take the allegation of the prisoner as equivalent to such plea, and the solemn admission of the officer of the State binds the State as an admission of its truth. It is said in Hawkins, Book 2, ch. 37, § 61, p. 550: “But it seems agreed that the Court is so far bound to take notice ex officio of a general pardon by parliament, which extends to all persons in general without exception, that it cannot proceed against any person whatsoever, as to any of the offences pardoned, though he be so far from pleading it, or praying the benefit of it, that he does all he can to waive it.”
Blackstone says (Book 4, p. 401:) “A pardon by act of parliament is more beneficial than by the King's charter, for a man is not bound to plead it, but the Court must, ex officio, take notice of it, neither can he lose the benefit of it by his own laches or negligence, as he may of the King's charter of pardon.” Judge Marshall, in United States v. Wilson, 7 Peters 163, says: “The reason why a Court must, ex officio, take notice of a pardon by act of parliament, is that it is considered as a public law; having the same effect on the case as if the general law punishing the offence had been repealed or amended.”
In State v. Blalock, Phil. 240, the act of 1866 was passed after the conviction of the defendants, and their...
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