State v. Moss

• Decision Date: 31 December 1854
• Citation: 2 Jones 66,47 N.C. 66
• Parties: STATE v. EDWARD MOSS.
• Court: North Carolina Supreme Court

2 Jones (NC) 66

47 N.C. 66

STATE

v.EDWARD MOSS.

Supreme Court of North Carolina.

December Term, 1854.

An act of the General Assembly giving to the Intendant of Police of a Town, the power of trying assaults and batteries, is unconstitutional and void.

INDICTMENT for ASSAULT and BATTERY, tried before his Honor Judge SETTLE, at the Spring Term, 1854, of Mecklenburg Superior Court. Plea, “not guilty,” ““former conviction” and specially,“that he was convicted and fined by the Intendant of the town of Charlotte, and that he has paid the fine and costs of that conviction and did not appeal from that judgment, and according to the section of the act incorporating the town of Charlotte, passed at the session of 1850, chap. he could not be indicted and punished.”

It was proved that the defendant committed an assault and battery on the body of John Sloan, jr., in the town of Charlotte, in Mecklenburg county, within two years before the bill was found.

For the defendant, it was shown, that he had been convicted for the same offense before the Intendant of Police of the Town, and fined; and that he had submitted to such judgment and paid the fine. The act of Assembly set forth in the plea, was also offered in evidence for the defendant, and it is admitted that the act confers the authority upon the Intendant which he exercised. Upon these facts, the defendant's counsel asked the Court to instruct the jury that he was protected, by the proceeding before the Intendant, from indictment, and that the plea was sustained.

His Honor declined to instruct the jury as asked, but gave it as his opinion that the act in question was unconstitutional, and that a conviction and punishment under it were invalid, and did not protect the defendant from this indictment. Verdict of guilty. Judgment and appeal.

Attorney General, for the State .

No counsel for the defendant.

NASH, C. J.

The defendant is indicted for an assault and battery committed in the county of Mecklenburg. He pleaded, among other things, a former conviction for the same offense, and specially, that he was convicted and fined by the Intendant of Police of the town of Charlotte, where the offense was committed, and that the judgment had been executed, and by the private Act of 1850, incorporating said town, he could not be indicted.

It is a principle of the common law, that when a man has once been acquitted or convicted, upon any indictment, or other prosecution, before any Court having competent jurisdiction of the offense, he may plead such acquittal or conviction, to any subsequent accusation for the same offense. 4th Bl. Com. 335. To render the plea available, the former judgment or trial must have been before a Court possessing the power to hold jurisdiction of the offense; in other words, the defendant must have been legally convicted or acquitted. The act of incorporation of the town of Charlotte does give to the Intendant of Police, the power to try and punish the offense with which the defendant is charged, so far as the Legislature could confer it. This brings up directly, the constitutionality of the act, so far as this question is concerned. The power of the Judiciary to adjudge an act of the General Assembly unconstitutional, is too firmly established to be questioned; but the Courts will not exercise this power in cases of doubt. Every act of the Legislatue is presumed to be constitutional and within its authority, and is to be declared unconstitutional only when no doubt exists. Hoke v. Henderson, 4th Dev. 1. Bank of Newbern v. Taylor, 2nd Murphy 266. When the words used are plain and clear, and the sense distinct and perfect arising on them, there is, in general, no room for construction or interpretation; 1 Story's Com. on the Con. of the U. S. sec. 401.

The bill of rights, constitutes a part of the constitution of this State. By the 8th sec. it is declared, “that no freeman shall be put to answer any criminal charge,...