State v. Pulliam

• Decision Date: 01 November 1922
• Docket Number: 345.
• Citation: 114 S.E. 394,184 N.C. 681
• Parties: STATE v. PULLIAM.
• Court: North Carolina Supreme Court

114 S.E. 394

184 N.C. 681

STATE v. PULLIAM.

No. 345.

Supreme Court of North Carolina

November 1, 1922

Appeal from Superior Court, Forsyth County; Brock, Judge.

J. S Pulliam was convicted in the municipal court of the violation of the Forsyth Sunday Closing Law. On appeal to the superior court, where the case was tried on a case agreed to the court without a jury, the conviction was sustained, and defendant appeals. Remanded.

The defendant was prosecuted in the municipal court of the city of Winston-Salem, the charge against him being that--

"At and in the county aforesaid, and within the corporate limits of the city of Winston-Salem, or within one mile of the corporate limits of the city of Winston-Salem, he did unlawfully and willfully keep his store, shop, fruit stand ice cream stand, or soft drink stand open on Sunday, for the purpose of the sale of goods, merchandise, and soft drinks and did sell Coca-Cola and other soft drinks on Sunday against the statute in such cases made and provided, and against the peace and dignity of the state, and in violation of the city ordinance."

At the trial he was found guilty by the court, without a jury, adjudged to pay a fine of $10 and the costs, from which judgment he appealed to the superior court, in which he was tried upon a case agreed upon by the solicitor and the defendant's attorney, wherein the following facts are stated:

"That the defendant's place of business is outside of the corporate limits of the city of Winston-Salem, N. C., and within one mile of said corporate limits. That he ran and operated, and had a license to do, a café business, serving food and lunches; ran and operated, and had license to run and operate, a cigar stand, selling tobacco products; that he ran a soft drink stand, and sold Coca-Cola and other soft drinks during the week days. That on Sunday, July 9, 1922, between 11 and 12 o'clock a. m., the defendant was running his café and selling food and ice cream to his guests. That he was selling ice cream on the porch in front of his café or store to any person who chose to buy. The store was open, and there were groceries on his counter, and soft drinks in cases exposed to view of his customers. That said groceries and soft drinks were in the same place in said building on said Sunday as on other days of the week, all of said business being in the same room. There is no proof that he sold or offered to sell on said Sunday anything but food and ice cream to his customers."

The defendant was convicted in the superior court, but without a jury, the judge alone passing upon the facts, and adjudging therein that he pay a fine of $15 and the costs, from which judgment he appealed.

Raymond G. Parker, of Winston-Salem, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

This was a criminal action, heard an appeal from the municipal court of the city of Winston-Salem by his honor, Judge W. E. Brock, at the July term, 1922, of the superior court of Forsyth county. The warrant in the municipal court, upon which the criminal action in that court was founded, charges an offense against chapter 320 of the Public Local Laws of 1919, as amended by chapter 200 of the Public Local Laws of the Extra Session of 1920. The act is commonly known as the "Forsyth County Sunday Closing Law," and was considered by this court, before the amendment of 1920, in State v. Shoaf, 179 N.C. 744, 102 S.E. 705, 9 A. L. R. 426. The original Act is C. S. § 3957.

Without waiving expressly or specifically a jury trial, the solicitor and the attorney for defendant submitted the question involved herein to Judge Brock for his decision upon a case agreed, without either a general or special verdict of a jury.

We have been unable, after a careful search, to find any case in this court, which permits a defendant to waive a trial by jury in a criminal action in the superior court, but several to the contrary. State v. Stewart, 89 N.C. 563; State v. Holt, 90 N.C. 753, 47 Am. Rep. 544; State v. Scruggs, 115 N.C. 807, 20 S.E. 720; State v. Wells, 142 N.C. 596, 55 S.E. 210, 9 Ann. Cas. 310.

Section 13 of article 1 of the Constitution is as follows:

"No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The Legislature may, however, provide other means of trial for petty misdemeanors, with the right of appeal."

The fact that a right of appeal was given where the defendant was convicted in the lower court without the intervention of a jury has generally been regarded as a sufficient reason in support of the validity of such trials without a jury in the inferior tribunal, as by appealing the defendant secures his right to a jury trial in the superior court, and therefore cannot justly complain that he has been deprived of his constitutional right.

The act of the General Assembly under which the municipal court of Winston-Salem was established expressly provides that--

"Any person convicted in said court shall have the right of appeal to the Superior Court of Forsyth County, and upon such appeal the trial in the Superior Court shall be de novo." Priv. Laws 1915, c. 180, § 70.

The offense here, of course, is a petty misdemeanor, but this court has held that the expression used in the Constitution, "with right of appeal," confers upon the defendant, when the appeal is taken, the right of trial by jury in the superior court, as will appear from these cases: State v. Lytle, 138 N.C. 738, 51 S.E. 66; State v. Brittian, 143 N.C. 668, 57 S.E. 352; State v. Hyman, 164 N.C. 411, 79 S.E. 284; State v. Tate, 169 N.C. 373, 85 S.E. 383; State v. Pasley, 180 N.C. 695, 104 S.E. 533. See, also, State v. Rogers, 162 N.C. 656, 78 S.E. 293, 46 L. R. A. (N. S.) 38, Ann. Cas. 1914A, 867.

Construing section 12 of article 1 with section 13, the court has held that, on these appeals from subordinate courts having jurisdiction of the subject-matter of the criminal action, a bill of indictment need not be sent in the court above against the defendant. When, however, a case reaches the superior court on appeal, it is heard de novo, as we have said, and, as a consequence, the right of a jury trial is secured thereby, according to the cases we have just cited.

Justice Hoke said in State v. Wells, 142 N.C. at pages 595, 596, 55 S.E. at page 212:

"While we have expressed our opinion on the main question, the right of the defendant to enter on the land, because the parties desired to present it, and in the hope that this opinion will end the controversy, we must not be understood as approving the method of procedure by which the guilt of the defendant was determined upon in the court below--a trial by a judge without the aid of a jury. Two decisions of this court--State v. Stewart, 89 N.C. 564; State v. Holt, 90 N.C. 749--have held that, in the superior court, on indictment originating therein, trials by jury in a criminal action could not be waived by the accused. We do not decide whether this principle applies in the present case, but, for the error pointed out, we direct that a new trial be granted, to the end that the facts found by the judge be set aside as insufficient to present the question of defendant's guilt or innocence, and defendant be tried in accordance with the law."

And in another case (State v. Holt, 90 N.C. at page 753, 47 Am. Rep. 544), involving the right of trial by jury, upon facts substantially similar to those appearing in the present record, Justice Merrimon commented at large upon the constitutional right of trial by jury, with special reference to its waiver expressly or impliedly by the defendant. We reproduce what he said, but not literally, though we will give the substance of it fully, as it is stated with great clearness and force, and its strong bearing upon the question we now have before us will instantly be seen. He said, among other things:

It is the province and the duty of the courts to keep strict watch over and protect fundamental rights in all matters that come before them. Those who administer the law should never forget that decided cases make precedents, precedents oftentimes of little moment in themselves, but which, in their accumulated power, may, in some emergency, overturn principle and subvert the rights of many people. A distinguished judge and law writer, in commenting upon the great excellence of trial by jury, thus points out the evil to which we advert:

"So that the liberties of the people cannot but subsist so long as this palladium remains sacred and inviolable, not only from all open attacks (which none will be so hardy as to make), but also from all secret machinations, which may sap and undermine it by introducing new arbitrary methods of trial by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered that delays and little inconveniences in the form of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon the sacred bulwark of the nation are fundamentally opposite to the spirit of our Constitution, and that, though begun in trifles, the precedents may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."

And proceeding, Justice Merrimon further said:

"These observations are not made, so much with reference to this particular case, as for counteracting what seems to be a tendency in this state to ignore, sometimes in matter of moment, trial by jury, in cases where, under the Constitution a trial must be...