State v. Mallett

• Decision Date: 24 October 1899
• Citation: State v. Mallett, 125 N. C. 718, 34 S. E. 651 (N.C. 1899)
• Parties: STATE v. MALLETT et al.
• Court: North Carolina Supreme Court

34 S.E. 651

125 N.C. 718

STATE v. MALLETT et al.

Supreme Court of North Carolina

October 24, 1899

Appeal from superior court, Edgecombe county; Hoke, Judge.

J. P Mallett and another were convicted in the circuit criminal court of Edgecombe county of a conspiracy to cheat and defraud, and from a judgment of the superior court overruling the conviction the state of appeals. Reversed.

Douglas J., dissenting.

On appeal by the state from a superior court of a case which accused had appealed from the criminal court, a contention by accused that the superior court did not pass on all his exceptions is untenable, where he did not request the judge to consider the exceptions.

Jacob Battle, Atty. Gen., and Gilliam & Gilliam, for the State.

G. M T. Fountain, for appellee.

CLARK J.

This is an indictment for "conspiracy to cheat and defraud," and an appeal therein to this court by the state from a judgment of the superior court overruling the judgment of the circuit criminal court held in Edgecombe county. In State v. Davidson, 124 N.C. 839, 32 S.E. 957, it was pointed out that an appeal should lie in such cases at the instance of the state, and attention was called to the inadvertence of the legislature (which alone has the power to prescribe the instances in which the state may appeal) in not amending section 1237 so as to embrace appeals by the state in cases going to the superior court from the Western criminal circuit. This inadvertence did not occur in the act (Laws 1899, c. 471) creating the Eastern district court, section 6 where of expressly provides for such appeals. Section 23 of said act transferred to the new Eastern district criminal court all causes pending in the First criminal circuit court. The judgment of the superior court overruled the criminal court on two grounds: (1) Because facts developed on the examination of the defendants in supplementary proceedings were used to affect their conviction contrary to the provisions of Code, § 488 (5), which provides that the answers of a defendant in supplementary proceedings "shall not be used as evidence against him in any criminal proceeding or prosecution." (2) That, the judge of the circuit court having held that this offense was a misdemeanor, which, by section 1177 of the Code, was barred only by the lapse of two years from its discovery, he erred in not submitting to the jury the question whether the facts constituting the crime were discovered within two years before action begun.

As to the first point, a careful inspection of the record and case on appeal sent up from the criminal court to the superior court shows that the judge of the criminal court in fact carefully excluded from the jury all evidence of the examination of the defendants in supplementary proceeding, and "all testimony based on information received from the examination of the defendants in such proceedings, and only allowed such as was had by the witness before the institution of the supplementary proceedings," and the same care to exclude such testimony was shown by him throughout the trial. There were proceedings subsequent to the supplementary proceedings, and entirely independent of them, and for a different purpose, before S. S. Nash, referee, and T. H. Battle, referee, at which the defendants offered themselves as voluntary witnesses, and at which it is possible and probable they may have made statements similar to those they had made before the clerk in supplementary proceedings; but such statements were not privileged, and were competent to be given in evidence against them ( State v. Hawkins, 115 N.C. 712, 20 S.E. 623), and, indeed, the defendants did not except as to them.

As to the second point, the judge of the criminal court rested his ruling upon the ground that the offense, though a misdemeanor, was one committed by deceit, and, as the evidence was uncontradicted that the discovery thereof was within two years before the beginning of the prosecution, the offense was not barred. In that view of the case, although the evidence was uncontradicted, the matter, in a criminal action, should have been left to the jury (State v. Riley, 113 N.C. 648, 18 S.E. 168), with an instruction that, if the jury believed the uncontradicted evidence that the offense had been discovered within two years before prosecution begun, the statute of limitation was not a bar. His honor, however, correctly held as a matter of law that the prosecution was not barred by the lapse of time, and his having given a wrong reason therefor will not vitiate the ruling. Up to the act of 1891 (c. 205) in this state we followed the somewhat arbitrary common-law rule as to what crimes were felonies and what were misdemeanors; and under that conspiracy, and even such grave crimes as perjury and forgery, were misdemeanors. By the act of 1891, North Carolina adopted the rule, now almost universally prevalent, by which the nature of the punishment determines the classification of offenses. Those which may be punished capitally or by imprisonment in the penitentiary are felonies (as to which there is no statute of limitations), and all others are misdemeanors (as to which prosecutions in this state are barred by two years). Code, § 1097, provided that misdemeanors created by statute, where no specific punishment was prescribed, should be punished as at common law; and further enacted that as to misdemeanors that were infamous, or done in secrecy and malice, or with deceit and intent to defraud, the offender might be punished by imprisonment in the county jail or penitentiary. This, by virtue of the subsequent act of 1891 (chapter 205), made the classes of misdemeanors thus subjected to punishment in the penitentiary felonies. The offense charged here, and of which the defendants have been convicted, was one done "with deceit and intent to defraud." It is the very essence and substance of it. Code, § 1097, having given the courts power to punish it with imprisonment in the penitentiary, the act of 1891 aforesaid makes it a felony, and the statute of limitations is not a bar. The indictment properly charges the offense to have been committed "feloniously." State v. Purdie, 67 N.C. 25; State v. Bunting, 118 N.C. 1200, 24 S.E. 118. The judgment of the superior court must be reversed.

On Reargument.

After the above opinion of the court had been filed, but before it had been certified down, the defendants filed a petition for reargument, assigning the following grounds:

1. Because there were other exceptions raised by the defendants, on their appeal from the criminal court to the superior court, which the judge of the latter court did not pass upon. The defendants should have requested the judge to pass upon those exceptions, and, if he had failed to do so, or held adversely to the defendants, they should have appealed. State v. Bost (at this term) 34 S.E. 650. In fact, those exceptions are trivial, and the judge passed upon all that merited his attention; but, as the practice in this class of appeals was possibly not understood, we will consider now the only exception which the petition to reargue insists the judge of the superior court should have passed upon, and held in favor of the defendants,--i. e. that the sheriff, by attachment, having seized the ledger and counter book of the defendants, they were put in evidence against them. There certainly was no error in using the defendants' own entries against them. The shoes of a party charged with crime can be taken and fitted to tracks as evidence, and in one case, when a party charged with crime was made to put his foot into the tracks, the fact that it fitted was held competent. State v. Graham, 74 N.C. 646. Nor has it ever been suspected that if, upon a search warrant, stolen goods are found in possession of the prisoner, that fact cannot be used against him. Here the books came legally into possession of another, and the telltale entries were competent against the parties making them in the course of their business.

2. The next exception in the petition is that, at the time of the commission of the offense, the statute allowed no...