State v. Taylor

• Decision Date: 31 January 1881
• Citation: 84 N.C. 773
• Parties: STATE v. L. D. TAYLOR.
• Court: North Carolina Supreme Court

84 N.C. 773

STATE

v.L. D. TAYLOR.

Supreme Court of North Carolina.

January Term, 1881.

INDICTMENT for assault and battery tried at June Special Term, 1880, of WAKE Superior Court, before Gudger, J.

The defendant is charged in several counts of the indictment with an assault and battery upon Madison Hodge and using a deadly weapon, or inflicting serious injury upon his person in all, except the last count which alleges no aggravating circumstances. Previous to empaneling the jury, the defendant's counsel submitted a motion to quash which was denied. After the conclusion of the evidence, the solicitor was permitted to enter a nolle prosequi to the last count and to proceed on the others. The jury rendered a verdict of guilty. To these rulings the defendant excepted and appealed from the judgment.

Attorney General, for the State .

Mr. T. M. Argo, for the defendant .

SMITH, C. J.

The motion to quash is sustained in the argument of defendant's counsel, upon the ground that a simple assault and battery under the act of 1879, ch. 92, is exclusively cognizable before a justice of the peace, and thus a conflict of jurisdiction arises, which is fatal to the prosecution. This position is at variance with the decision in State v. Moore, 82 N. C., 659; and in State v. Taylor, 83 N. C., 601, recognizing and approving it.

The act of 1879 contains provisions which we find it difficult to harmonize, and as the result of a careful examination and to give effect to the legislative will, we put upon the enactment what we deemed a fair and reasonable construction in the case first cited. It is there held that when the assault and battery are with intent to kill, or commit rape, or a deadly weapon has been used, or serious damage done, the offence is committed to the exclusive cognizance of the superior court; that the jurisdiction is concurrent with that of a justice of the peace in regard to the offences specified in the eleventh section; and that “in framing bills of indictment for such offences, (those in that section) it is not necessary to aver that the offence was committed more than six months before the finding of the bill, and that no justice of the peace has taken official cognizance of it.” The last count does not then disclose a case outside the jurisdiction of the court, although it might so appear upon the trial. But we do not concede, if it were otherwise, that the presence of a count containing a charge which the court may be incompetent to try for want of jurisdiction will disable the court from proceeding with the trial of an offence charged in a count of which it has jurisdiction, although they are parts of the same bill. We do not undertake, as it unnecessary, to decide the point.

The second exception is equally without support. As we understand the record, the effect of the entry was to withdraw the last count from the consideration of the jury, and have them to pass upon the others. Strictly, a nolle prosequi can only be entered by the prosecuting officer, before the jury are impaneled, or after the rendition of a verdict against the defendant. During the trial it can only be done with his consent. While then, in strictness, a nol. pros. could not be entered, and the count thus reserved for a future prosecution of the defendant, which is its effect when properly entered, ( State v. Thornton, 13 Ired., 256,) the action of the solicitor must be deemed an election to proceed on the other...