State v. Smith

• Decision Date: 09 November 1911
• Parties: STATE v. SMITH.
• Court: North Carolina Supreme Court

72 S.E. 853

157 N.C. 578

STATE v. SMITH.

Supreme Court of North Carolina

November 9, 1911

Appeal from Superior Court, Wake County; W. R. Allen, Judge.

Habeas corpus by Turner Smith. The writ was dismissed, and relator remanded, and he appeals. Affirmed.

J. C L. Harris, Chas. M. Harris, and Aycock & Winston, for appellant.

Attorney General Bickett and G. L. Jones, for the State.

WALKER J.

The defendant was indicted in the superior court for an assault with intent to commit rape, and was convicted by the jury not of the felony charged in the indictment, but of an assault and battery upon a woman; he being, at the time of the assault, over the age of 18 years.

The indictment alleged that "the defendant, with force and arms, at and in the county aforesaid, in and upon one Lillian Whitson, then and there being, did make an assault, and her the said Lillian Whitson, then and there, did beat, wound and ill treat, with intent, her the said Lillian Whitson, violently and against her will, then and there, feloniously to ravish and carnally know, and other wrongs to the said Lillian Whitson then and there did, against the form of the statutes in such case made and provided, and against the peace and dignity of the state." Upon the verdict, the court below rendered judgment that the defendant be imprisoned in the common jail of Wake county for the term of two years, and assigned to work on the public roads of said county; his earnings during said term, as allowed by the commissioners of the county, to be applied to the payment of the costs. The defendant did not appeal from that judgment, but submitted thereto, and, having served for 30 days on the roads and performed the judgment to that extent, he applied by petition for the writ of habeas corpus to Hon. W. R. Allen, one of the justices of this court, and alleged that the sentence of the court was excessive, upon the ground that the indictment failed to allege that, at the time of the assault, he was more than 18 years old, and that therefore the Laws of 1911, ch. 193, do not apply, as that was an essential averment to be made, in order to warrant the punishment inflicted; the finding of the jury as to his age not being allowed by law to aid the indictment in that respect.

Judge Allen, at the hearing of the petition, dismissed the proceeding and remanded the defendant, holding that it was not necessary for the indictment to allege that the defendant, at the time he committed the assault, was over the age of 18 years, and in this conclusion we unhesitatingly concur, although it may require a very careful and minute examination of our statutes, and the authorities bearing upon the subject, in order to clearly demonstrate the fallacy of the defendant's position.

The defendant was indicted, as we have seen, for an assault with intent to commit rape, and by the verdict was convicted of an assault upon a woman; he being then over the age of 18 years. The allegations of the bill gave the court jurisdiction to try the case, and to pronounce such a judgment as was authorized by law. As Judge Ashe observed, and subsequently repeated, in State v. Moore, 82 N.C. 660: "This kind of litigation would not recur if the Legislature would take the subject in hand, and free it of its many complexities and ambiguities. A statute or statutes intended to prevent or to cheapen litigation, or to speed the trial of cases, or to more adequately prevent crimes, should not defeat the purpose of the enactment by vague and ambiguous terms. There have been many cases brought to this court to ascertain what the Legislature meant in its attempt to carry out the following constitutional provision [article 4, § 27]: 'The several justices of the peace shall have jurisdiction under such regulations as the General Assembly shall prescribe, of all criminal matters arising within their counties where the punishment cannot exceed a fine of fifty dollars, or imprisonment for thirty days."' The statutes relating to this subject have not been so codified in the Revisal as to remove the doubts and uncertainties suggested by this court in its former decisions, although it has been said that certain statutes which were in pari materia should be construed together, so as to ascertain the true legislative intention. But let us look at the statutes pertinent to this question. Revisal 1905, § 1427, provides that justices of the peace shall have exclusive jurisdiction of all assaults, batteries, affrays, when no deadly weapon is used and no serious damage is done, and of all criminal matters arising in their counties, where the punishment, prescribed by law, shall not exceed a fine of $50 or 30 days imprisonment, with a proviso preserving the jurisdiction of the superior courts when the offense is committed within a mile of the place where the court is held, and during its session. It further provides that the section shall not be construed to prevent superior courts from assuming jurisdiction of offenses whereof original jurisdiction is given to justices of the peace, if some justice of the peace, within 12 months after the commission of the offense, shall not have taken official cognizance of the same.

Revisal, § 3620, as amended by Laws of 1911, c. 193, provides as follows: "In all cases of an assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court: Provided, that where no deadly weapon has been used and no serious damage done, the punishment in assaults, assaults and batteries, and affrays, shall not exceed a fine of fifty dollars or imprisonment for thirty days; but this proviso shall not apply to cases of assault with intent to kill, or with intent to commit rape; or to cases of assault or assault and battery by any man or boy over eighteen years of age on any female person." It was argued by the learned counsel for defendant that it is necessary to consider the statutes above mentioned, and as explained by Revisa1, § 3268, which is as follows: "On the trial of any person for rape, or any felony whatsoever, when the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding; and when such verdict shall be found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law, in cases of conviction when (if) the indictment was (had been) originally for an assault of a like character."

Discarding all superfluities and rejecting nice distinctions and subtle refinements, and stripping these statutes to the bone, even to the marrow, the real intention of the Legislature is laid perfectly bare, and its meaning becomes apparent. It all, therefore, results in this: That a man who is indicted for an assault with intent to ravish, and is convicted of a simple assault and battery upon a woman, without the alleged intent, he being over the age of 18 years, can be punished at the discretion of the court, without any allegation in the bill as to his age, and cannot shield himself behind the statute conferring jurisdiction on a magistrate of simple assaults, nor limit the punishment, under the first proviso of Revisal, § 3620, to a fine of $50 or imprisonment for 30 days, upon conviction in the superior court, where, by the statute, it has acquired jurisdiction. It has been held uniformly that, where an exception, or even a proviso, to the enacting clause of a statute creating an offense is descriptive thereof, it is necessary to negative, in an indictment thereunder, the existence of the facts contained in the exception or proviso, though the burden of proof to establish them may rest upon the defendant. State v. Blackley, 138 N.C. 620, 50 S.E. 310. "Where the words contained in a proviso or exception are descriptive of the offense and a part of its definition, it is necessary, in stating the crime charged, that they should be negatived in the indictment, and where the statute does not otherwise provide, and the qualifying facts do not relate to the defendant personally, and are not peculiarly within his knowledge, the allegation, being a part of the crime, must be proved by the state beyond a reasonable doubt." State v. Connor, 142 N.C. 700, 55 S.E. 787. Joyce on Indictments, § 279, where the law is thus stated: "The general rule as to exceptions, provisos, and the like, is that where the exception or proviso forms a portion of the description of the offense, so that the ingredients thereof cannot be accurately and definitely stated, if the exception is omitted, then it is necessary to negative the exception or proviso. But where the exception is separable from the description, and is not an ingredient thereof, it need not be noticed in the accusation; for it is a matter of defense. But where there is an exception, so incorporated with the enacting clause that the one cannot be read without the other, then it is held that the exception must be negatived."

But this case does not fall within that principle. The third proviso was not intended to create a separate and distinct offense in law, to be known as an assault and battery by a man, or a boy over 18 years old, upon a woman; but it merely excepted that case from the operation of the first proviso by which the punishment for a simple assault was limited to a fine of $50 or imprisonment for 30 days. It related solely to the degree of punishment for an assault committed upon a woman by a man, or by a boy over 18 years of age. It was always a crime for a man, or a boy over 18 years of age, to assault a woman, and the object of section 3620 was to provide that...