State v. Lytle
| Decision Date | 26 May 1905 |
| Citation | 51 S.E. 66,138 N.C. 738 |
| Parties | STATE v. LYTLE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Neal, Judge.
Mark Lytle was convicted of retailing spirituous liquor without a license, and he appeals. Reversed.
Frank Carter, for appellant.
M. W Brown, with the Attorney General, for the State.
By chapter 35, Laws 1905, there was created a special court in Asheville, to be styled the "Police Court," to be presided over by a police justice, providing for his election, term of office, qualification, and compensation. Section 4 of said act confers upon said court "all the jurisdiction and powers in all criminal offenses occurring within the corporate limits of the city of Asheville, which are now or may hereafter be given justices of the peace," and also "exclusive original jurisdiction to hear and determine all offenses and misdemeanors consisting of a violation of an ordinance of said city." Section 5 provides that "said police court shall, in addition to the jurisdiction conferred by section 4 of this act, have exclusive original jurisdiction of all other criminal offenses committed within the corporate limits of said city, below the grade of felony as now defined by law and all such offenses committed within said city are hereby declared to be petty misdemeanors." By section 13 the right of appeal to the superior court of Buncombe county is given in all cases.
The defendant, who was indicted in the superior court for retailing spirituous liquor without license, contrary to the general law of this state, pleaded former conviction, and relied upon the record of his trial, conviction, and sentence in the police court for retailing spirituous liquor in violation of the town ordinance. It does not appear that it was the same sale, but, even if it were, the plea of former conviction was invalid, as was held in State v Stevens, 114 N.C. 878, 19 S.E. 861, where it is pointed out that, while a town ordinance cannot make punishable an offense made punishable by the state law, yet when a tax or license is required by the state, and another tax or license is exacted by the town, selling the same glass of liquor may be a violation of the town ordinance and also a violation of the state law, if license has not been obtained from both; and, further, the same act may be punishable by the federal government if in violation of its statutes; and, indeed, if the purchaser is a minor, the same single act may constitute a fourth distinct offense of selling spirituous liquor to a minor, and even a fifth if the sale is on Sunday. Though there is a single act, it may be thus a violation of five statutes, and when in such case "each statute requires proof of an additional fact, which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution under the other." Burwell, J., in State v. Stevens, 114 N.C. 873, 19 S.E. 861 () citing Arrington v. Commonwealth, 87 Va. 96, 12 S.E. 224, 10 L. R. A. 242; Ruble v. State, 51 Ark. 170, 10 S.W. 262; Black, Intox. Liq. § 555. The ruling in State v. Stevens has been cited and followed in State v. Reid, 115 N.C. 741, 20 S.E. 468; State v. Robinson, 116 N.C. 1048, 21 S.E. 701 (); State v. Downs, 116 N.C. 1067, 21 S.E. 689; State v. Lawson, 123 N.C. 742, 31 S.E. 667, 68 Am. St. Rep. 844; State v. Smith, 126 N.C. 1059, 35 S.E. 615.
The defendant further moved to quash the indictment and also in arrest of judgment upon the ground that by virtue of the above-recited act of 1905 the superior court had no original jurisdiction. This presents the real point in the case, which is the constitutionality of section 5 of the act. There can be no question as to the validity of so much of section 4 as gives the police court concurrent original jurisdiction of offenses cognizable by justices of the peace, for the Constitution does not make the jurisdiction of the latter exclusive. Rhyne v. Lipscombe, 122 N.C. at page 656, 29 S.E. at page 58. Counsel asked us to pass upon the constitutionality of the other clause of section 4 which purports to give to the police court "exclusive original jurisdiction to hear and determine all offenses and misdemeanors consisting of a violation of an ordinance of said city." But that point is not presented by this record, and we would not presume to pass upon the constitutionality of an act of the General Assembly upon an obiter dictum. It is too serious a matter to be considered unless absolutely necessary to the decision of a cause, and a statute will then never be held unconstitutional if there is any reasonable doubt. Sutton v. Phillips, 116 N.C. 504, 21 S.E. 968. The Constitution (article 4, § 14) authorized the General Assembly to establish "special courts for the trial of misdemeanors in cities and towns." By virtue of this provision such courts were formerly established in Wilmington and Newbern. By the constitutional amendments of 1875 (article 4, § § 2, 12) the General Assembly was authorized to establish "such other courts inferior to the Supreme Court" and "allot and distribute" the jurisdiction of the courts below the Supreme Court as it saw fit. Under this criminal courts and circuits were established, until finally these courts were, by statute, given the same jurisdiction, civil and criminal, as the superior courts, with the right of appeal therefrom direct to this court. In Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57, and Tate v. Commissioners, 122 N.C. 661, 29 S.E. 60, these acts were held unconstitutional so far as they provided for appeals direct from such courts to this court, and took away the appeal, given by the Constitution, direct from justices of the peace to the superior court. Subject to these restrictions, and the further restriction that such courts might be given only concurrent, but not exclusive, jurisdiction of matters given to justices of the peace by the Constitution, it was held that the General Assembly might "create courts inferior to the Supreme Court, with all or such part as it thinks proper, of the original criminal or original civil jurisdiction above that given by the Constitution to justices of the peace." The objection to section 5 is therefore founded upon the Constitution, art. 1, § 12: "No person shall be put to answer any criminal charge, except as hereinafter allowed, by indictment, presentment or impeachment;" and section 13:
In the police court there is no jury nor grand jury. The guaranty of a jury trial is fully met by the right of appeal which is given from this police court, in all cases, to the superior court, but the objection is urged that there is no provision for a grand jury. The General Assembly might have provided for this also by enacting that upon appeal the action should be quashed unless an indictment is found. It sought, however to attain the same end by providing that "all offenses less than felony, as now defined by law, committed within said city, are hereby declared to be petty misdemeanors." Laws 1876-77, p. 250, c. 154 (Code 1883, c. 21), established a general system of inferior courts, and gave them jurisdiction (Code § 808) "of all crimes and misdemeanors except those whereof exclusive jurisdiction is given to courts of justices of the peace and except the crimes of murder," etc.; and section 11 (page 253) of said act (Code, § 810) provided that "in all issues of fact founded upon trials of petty misdemeanors the parties may *** waive their right to have the same determined by a jury." As these courts had no jurisdiction, either original or appellate, of any offense within the jurisdiction of a justice of the peace, it is clear that "petty misdemeanors" was not a term restricted to offenses cognizable by a justice of the peace. When the Constitution of 1868 was created, there...
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