State v. Lewis

• Decision Date: 21 November 1906
• Citation: 55 S.E. 600,142 N.C. 626
• Parties: STATE v. LEWIS.
• Court: North Carolina Supreme Court

55 S.E. 600

142 N.C. 626

STATE v. LEWIS.

Supreme Court of North Carolina

November 21, 1906

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

Prosecution of Zeke Lewis for lynching.From an order quashing the billthe state appeals.Reversed.

Brown J., dissenting in part.

The proper method for attacking an indictment as defective, in that the crime was committed in another county, is by a plea in abatement, rather than a motion to quash.

The defendant was indicted in said county upon the following bill:

"North Carolina Superior Court.Union County, July Special Term, 1906.The jurors for the state upon their oath present: That Zeke Lewis and others, late of the county of Anson, on the 28th day of May, in the year of our Lord one thousand nine hundred and six, with force and arms, at and in the county aforesaid, unlawfully, wickedly, willfully, and feloniously did conspire together to break and enter the common jail of Anson county, the place of confinement of prisoners charged with crime, for the purpose of lynching, injuring, and killing one John V. Johnson, a prisoner confined in said jail, charged with the crime of murder, against the form of the statute in such case made and against the peace and dignity of the state.And the jurors for the state, upon their oaths aforesaid, do further present: That the said Zeke Lewis afterwards, to wit, on the day and year aforesaid, with force and arms, at and in the county aforesaid, unlawfully, willfully, and feloniously did engage in breaking and entering the common jail of Anson county, the place of confinement of prisoners charged with crime, with intent to injure, lynch, and kill one John V. Johnson, a prisoner confined in said jail charged with the crime of murder, against the form of the statute in such case made and provided, and against the peace and dignity of the state.And the jurors for the state, upon their oaths aforesaid, do further present: That the said Zeke Lewis afterwards, to wit, on the day and year aforesaid, with force and arms, at and in the county aforesaid, unlawfully, willfully, wickedly, and feloniously did injure, lynch, and kill one John V. Johnson, a prisoner confined in the common jail of Anson county, charged with the crime of murder, against the form of the statute in such case made and provided, and against the peace and dignity of the state.Robinson, Solicitor."The defendant moved to quash the bill"for the reason that it appears upon the face of the bill that the offenses charged were committed, if at all, in Anson county, and there is no warrant or authority of law for finding the indictment or trying him in Union county;" and also to quash the first count in the bill because it charges that "the defendant conspired with others," without naming or charging, "and others to the jurors unknown."Both motions were allowed, and the state excepted and appealed.

Walter Clark, Jr., and R. B. Redwine, with the Attorney General, for the State.

J. A. Lockhart, H. H. McLendon, and W. J. Coxe, for the defendant.

CLARK C.J.

The first statute passed in this state in regard to lynching was chapter 461, p. 441,Laws 1893.Each provision in that act has been brought forward and incorporated, with very slight verbal changes, under appropriate heads in Revisal 1905.Section 1 of said act, defining lynching and imposing the penalty, is now Revisal 1905, § 3698, and is in the chapter on "Crimes," under the subhead "Public Justice," and is as follows:

"3698.Lynching.If any person shall conspire to break or enter any jail or other place of confinement of prisoners charged with crime or under sentence, for the purpose of killing or otherwise injuring any prisoner confined therein; or if any person shall engage in breaking or entering any such jail or other place of confinement of such prisoners with intent to kill or injure any prisoners, he shall be guilty of a felony, and upon conviction, or upon a plea of guilty, shall be fined not less than five hundred dollars, and imprisoned in the State's Prison or the county jail not less than two nor more than fifteen years."Laws 1893, p. 440, c. 461, § 1.

Section 2 is now Revisal 1905, § 3200, and provides that the solicitor shall prosecute and have the prisoners bound over to the superior court of an adjoining county.Section 3 is as to witnesses testifying, and is Revisal 1905,§ 3699.Section 4 of the said act of 1893 is Revisal 1905, § 3233, in the chapter on "Criminal Proceedings," subhead "Venue" and reads: "XI. Venue. 3233. Lynching.The superior court of any county which adjoins the county in which the crime of lynching shall be committed shall have full and complete jurisdiction over the crime and the offender to the same extent as if the crime had been committed in the bounds of such adjoining county; and whenever the solicitor of the district has information of the commission of such a crime, it shall be his duty to furnish such information to the grand juries of all adjoining counties to the one in which the crime was committed from time to time until the offenders are brought to justice."Laws 1893, p. 440, c. 461, § 4.

Section 5, as to witnesses answering questions, is made Revisal 1905, § § 1638, 3201.Sections 6and7 are the same as Revisal 1905, § § 1288, 2825.The whole of chapter 461, p. 440,Laws 1893, is thus in the Revisal, and its force and effect is not impaired by the fact that it has been split up, and its different sections placed under appropriate heads.It seems to us that the above provisions fully define the offense intended to be repressed, and designate the punishment and procedure.There are many offenses in this chapter on "Crimes" which, though not common-law offenses, are not defined save by using the term of common knowledge, as "abandonment,""lynching," etc.It is not necessary to prescribe that an act is a misdemeanor or felony; the punishment affixed determines that.Revisal 1905, § 3291;State v. Fesperman,108 N.C. 772, 13 S.E. 14.

It was error to quash the bill on the ground that the offense was not committed in Union county, which is an adjoining county to Anson.Owing to the prejudice or sympathy which in cases of lynching usually and naturally pervades the county where that offense is committed, the General Assembly, upon grounds of public policy, deemed it wise to transfer the investigation of the charge to the grand jury of an adjoining county.Without some such provision, an indictment could rarely be found in such cases.We cannot concur with the argument that such provision (Revisal 1905, § 3233) is beyond the scope of the law-making power and unconstitutional.The Legislature of North Carolina has full legislative power, which the people of this state can exercise completely and freely as the Parliament of England or any other legislative body of a free people, save only as there are restrictions imposed upon the Legislature by the state and federal Constitutions.In the very nature of things, there is no other power that can impose restrictions.When the Constitution uses the words ""jury" and "grand jury,"they are interpreted as being the same bodies which were known and well recognized when the Constitution was adopted.But this is a rule of ascertaining the meaning of the words, and not a restriction upon the power of the Legislature to make provisions as to venue, and the like incidental matters, which in no wise affect the nature and composition of a jury and grand jury.Hence, the qualification of jurors, the number of challenges, venue, and other similar provisions as to procedure, are in the discretion of the Legislature.The legislative power can be restrained only by constitutional provisions.It cannot be restricted and tied down by reference to the common law or statutory law of England.There is nothing in the common law or statute law of England which is not subject to repeal by our Legislature, unless it has been re-enacted in some constitutional provision.That the federal government is one of granted powers solely, and the state government is one of granted powers as to the executive and judicial departments, but of full legislative powers, except where it is restricted by the state or federal Constitution, is elementary law.This is nowhere more clearly stated than by Black, Const. Laws, § § 100, 101, as follows:

"Sec. 100.Under the system of government in the United States, the people of each of the states possess the inherent power to make any and all laws for their own goverance.But a portion of this plenary legislative power has been surrendered by each of the states to the United States.The remainder is confided by the people of the state, by their Constitution, to their representatives constituting the stateLegislature.At the same time, they impose, by that instrument, certain restrictions and limitations upon the legislative power thus delegated.But state Constitutions are not to be construed as grants of power (except in the most general sense) but rather as limitations upon the power of the stateLegislature.

Sec. 101.Consequently, the Legislature of a state may lawfully enact any law, of any character, on any subject, unless it is prohibited, in the particular instance, either expressly or by necessary implication, by the Constitution of the United States or by that of the state, or unless it improperly invades the separate province of one of the other departments of the government, and provided that the statute in question is designed to operate upon subjects within the territorial jurisdiction of the state."

That eminent authority, Cooley, Const. Lim. (7th Ed.) 126, says "In creating a legislative department and conferring upon it the legislative power, the people must be understood to...