State v. Swepson

• Decision Date: 30 June 1878
• Citation: 79 N.C. 632
• Court: North Carolina Supreme Court
• Parties: STATE v. GEORGE W. SWEPSON.

79 N.C. 632

STATE

v.GEORGE W. SWEPSON.

Supreme Court of North Carolina.

June Term, 1878.

INDICTMENT tried at Spring Term, 1875, of WAKE Superior Court, before Watts, J.

At June Term, 1874, of said Court the grand jury made a presentment against the defendant and one M. S. Littlefield for an offence committed against the State, and at October Term following a bill of indictment was found, in which it was substantially charged that they did combine, conspire, confederate and agree together and with divers other persons to the jurors unknown, by divers false pretences and subtle means and devices, to obtain and acquire to themselves, and from the State of North Carolina, divers bonds to be issued by the State, with coupons attached, of the value of $1000 each, known as special tax bonds, to the amount of four millions of dollars, and to cheat and defraud the State of the value thereof. And in pursuance of said conspiracy, on the 19th of August, 1868, and on the 29th of January, 1869, they “did incite, procure, obtain and have enacted by the general assembly” an act to amend the charter of the W. N. C. R. R. Co. and that they were appointed commissioners to open books of subscription for the capital stock with authority to receive subscriptions from solvent individuals and corporations, and five per cent of such subscriptions; and on the 15th of October, 1868, did as commissioners sign, seal and deliver to the board of internal improvements of the State, a certain false and fraudulent certificate, in which it was certified that $308,500 had been duly subscribed to said stock, and afterwards other large sums, and that five per cent thereof had been paid in cash, to construct the western division of said road; whereas in fact and in truth said sum had not been truly and bona fide subscribed, nor said per centage paid in cash, which was well known to them when they signed said certificate. The bill further charged that they unlawfully and fraudulently pretended to enter into contracts for the completion of the road, when in fact no real or bona fide contract was made, and that the compliance with the charter of the company was merely a formal one to procure the issuance of the bonds of the State in payment of the stock; the said Littlefield had subscribed for a large amount of said stock, and was insolvent and unable to pay the same, and that said per centage thereon had not been paid, and that this was known to the defendant at the time; that by said false pretences and devices they unlawfully and fraudulently obtained from the public treasurer a large amount of said bonds issued by the State in payment of stock in said company, a portion of which they fraudulently appropriated and paid to certain members of the general assembly of 1868-'69 and other persons, to secure and obtain the enactment of said amendment, and the balance they appropriated to their own use and for their individual purposes. A capias was accordingly issued and returned by the sheriff “not found as to Littlefield; not executed as to Swepson, by order of Solicitor and Smith & Strong, counsel for the State,” and the case was continued for the State. At Spring Term, 1875, of said Court, the sheriff returned the capias to the clerk, endorsed “Littlefield not to be found; defendant Swepson sick.” Thereupon the Court directed the said endorsement to be entered upon the records, and ordered,--“It appearing to the Court that the Solicitor not having asked for an alias capias or entered a nolle prosequi, it is ordered that the clerk issue an instanter capias for the defendants,” which was returned executed as to the defendant, Swepson. A nol. pros. was entered as to Littlefield, and the trial coming on the defendant pleaded not guilty, a jury were sworn and impannelled to try the issue, and “under the instructions of the Court the said jury for their verdict say that the defendant is not guilty.”

The Solicitor then filed his petition in this Court for a mandamus which is substantially as follows (after giving date of said presentment and indictment as above set forth):--That the State was not prepared to try the indictment at the term after it was found by the grand jury, and the petitioner directed the sheriff not to serve the capias upon the defendant, his co-defendant being at that time beyond the limits of the State, and it was therefore returned into Court without execution on either, and for similar reasons the capias issuing from January Term, 1875, of said Court was not executed. He further stated that witnesses had been summoned for the State and many of them were material witnesses but not in attendance, and at the said Spring Term as your petitioner heard and believed, the defendant was sick and unable to be present in Court; that the late Governor Caldwell had employed two other attorneys to aid in the prosecution of the action, and it was then expected and intended to prepare the case and be able to try it at the following term; that in the absence of said counsel and without notice to petitioner, the counsel of defendant moved that a verdict of not guilty should be entered for the defendant, for the reason, that the offence charged had been the subject of an agreement and compromise between the defendant and the proper officers on behalf of the State, as appeared by a copy of proceedings had in Buncombe Superior Court in an indictment there pending, the defendant not being present in Court and unable from sickness to attend. This motion was strenuously resisted by your petitioner, but it was granted, and without plea the presiding Judge ordered the jury to be impannelled and a verdict of not guilty to be entered, which was done; and that soon thereafter he caused the facts which transpired to be written out as follows: “The counsel for defendant--the defendant not being present in Court--moved that a verdict of not guilty be entered as to him on the ground that an indictment for the same offence against him had been theretofore compromised by the State, and a nolle prosequi entered therein, and in support of the motion the counsel read to the Court the transcript of which the following is a copy,--the Solicitor for the State objected to the calling of the cause at this term, or to any motion being heard in reference thereto, because he was not ready for the trial of the same, for the reasons which appeared from the papers in the case; that said defendant had never been arrested till that day in pursuance of an order made on the same day by the Court without any notice to him. The said Solicitor further objected that the said motion was without precedent or authority in law. The objections were overruled by His Honor who thereupon caused a jury to be impannelled, and there being no plea pleaded or evidence given to the jury, His Honor told the jury that the said indictment against the defendant had been compromised by the State; that he did not intend to allow the honor of the State to be tarnished, and directed said jury to return a verdict of not guilty, which was accordingly done, and the defendant was ordered to be discharged. The above is a true statement of the facts. The petitioner further stated that he did not waive the presence of the defendants, but refused to assent to any proceeding in the case; that an appeal was asked and refused on the ground that it would not lie from a judgment on a verdict of acquittal; that on Saturday of same week one of his associated counsel called upon the Judge and asked that the facts which had transpired in Court relating to the matters aforesaid should be made a part of the record of the term, in order that the action of the Court in the premises might be reviewed in this Court on appeal, or other proper proceeding, and to this end began to read over, and did read a part of the statement as contained...