State v. Lane

• Decision Date: 31 January 1878
• Court: North Carolina Supreme Court
• Parties: STATE v. DAVID LANE.

78 N.C. 547

STATE

v.DAVID LANE.

Supreme Court of North Carolina.

January Term, 1878.

INDICTMENT for Assault and Battery, tried at November Term. 1877, of EDGECOMBE Inferior Court, before H. C. Bourne, W. T. C??bb and J. J. Battle, Justices of the Peace.

The indictment charged the defendant and three others with an assault upon the prosecutor, and upon the trial the defendant, Lane, pleaded former acquittal. This plea was sustained by the Court below, and the State appealed to this Court.

Mr. John L. Bridgers, Jr., who prosecuted in the Court below, appeared with the Attorney General for the State .

Mr. Fred. Phillips, for the defendant .

RODMAN, J.

1. The first question presented is,--could the State appeal to any Court from the action of the Inferior Court which is set forth in the record? The record proper states that the defendant pleaded a former acquittal and that the plea was considered by the Court, and then proceeds; “It is ordered and adjudged by the Court that the said plea be and is in all respects sustained.” From this judgment the Solicitor appealed to this Court. The case, which we consider a part of the record, after setting out the evidence respecting the former trial, says, “The Court thereupon instructed the jury that the acts alleged in the second indictment against Lane and others were embraced in the charge contained in the first indictment against Lane, and they need not consider the case as against him at all. The Solicitor prayed an appeal to the Supreme Court and a verdict of not guilty was rendered under the direction of the Court.” As the record proper shows that a verdict of not guilty was rendered as to the co-defendants of Lane, and does not show that any verdict was rendered as to him, we will understand the last quoted paragraph from the case as meaning no more than this, although its more natural sense would seem to be that Lane himself was acquitted.

Without departing from the question under consideration, we may say, that the Judge clearly erred in withdrawing from the jury the finding upon the issue, whether the fight for which the defendant had been formerly acquitted, was the same with that charged in the indictment then on trial and in undertaking to decide himself that question of fact, as he seems to have done. The plea of former acquittal is a mixed plea of law and fact and it must always be left to a jury under instructions from the Court to pass upon the fact, whether the offence charged against a defendant on trial, is identical with one for which he has been formerly tried.

Until lately no case could be found in the English Reports where a writ of error was allowed on behalf of the Crown in a criminal prosecution, and it has not yet been decided that such a writ may lawfully issue, as in the cases in which it did issue, the question was not made. No reference is found to it in the older books on criminal law, but the authorities may be found collected in 1 Bennett and Heard's Leading Criminal Cases, 610, in the note to the cases of People v. Corning, 2 Coms. (N. Y.) 1, and Commonwealth v. Cummings, 3 Cush. (Mass.) 212.

From the cases there cited it will be seen that in many of the States it is held that the State has no appeal in a criminal case under any circumstances. In all, or nearly all, it seems to be held that where the right of appeal exists, it is given by statute; and that if it exists at all independently of a statute, it is confined to two cases only: One where the Inferior Court has given judgment for the defendant upon a special verdict, and the other where it has given a like judgment upon a demurrer to an indictment, or upon a motion to quash, which is considered as substantially similar.

In this State it has been recognized as existing in those two cases, but I am not aware that it has been in any others. Thus limited, the right may be defended by reasoning, although not expressly given by any statute, it violates no principle, and can never be used oppressively. Clearly in this State, an appeal by the State is not a general right, and...