State v. Taylor

• Citation: 46 S.E. 5,133 N.C. 755
• Parties: STATE v. TAYLOR.
• Decision Date: 18 December 1903
• Court: United States State Supreme Court of North Carolina

46 S.E. 5

133 N.C. 755

STATE v. TAYLOR.

Supreme Court of North Carolina

December 18, 1903

Appeal from Superior Court, Edgecombe County; Ferguson, Judge.

J. M Taylor was prosecuted for an assault with a deadly weapon and from the judgment of acquittal the state appeals. Reversed.

A conviction of violating a city ordinance punishing the disturbance of the good order and quiet of the town by fighting, etc., is not a bar to a prosecution by the state for an assault.

The Attorney General, for the State.

CONNOR J.

The defendant was indicted at the September term, 1903, of the superior court of Edgecombe county, for an assault with a deadly weapon. The record states that he pleaded "Not guilty." The case on appeal states that the defendant ""admits the assault, but contends and introduces evidence tending to prove that no deadly weapon was used. *** The defendant pleads former conviction, and offers in evidence the record of the mayor's court of the town of Tarboro, which shows that in August, 1902, a warrant was issued by the mayor against the defendant charging that he 'did unlawfully violate an ordinance of the town of Tarboro, to wit, Ordinance No. 10, section 1, by fighting and disturbing the peace, contrary to said ordinance, against the statute in such cases made and provided, and against the peace and dignity of the state." D' The defendant was arrested upon said warrant, and judgment rendered as follows: "After hearing the evidence, and it appearing to the court that the defendant pleads guilty, it is considered and adjudged that the defendant pay costs $2.85."

Ordinance No. 10 is in the following words: "No person or persons shall be permitted to disturb the good order and quiet of the town by fighting, making loud noises, using profane, boisterous and indecent language or in any other manner, under a penalty of twenty five dollars." The mayor testified, "I issued this warrant under Ordinance No. 10, and tried the defendant for disturbing the peace of the town by fighting, exactly as set out in the warrant. There was no evidence of any disturbance by making loud noises or using profane, boisterous, or indecent language. The evidence disclosed no disturbance or noise except the act of striking the said Will Pope. *** The warrant shows what I tried Taylor for." At the close of the evidence the defendant asks the court to charge the jury "that upon the record on evidence the defendant has been tried and convicted of a simple assault for the offense under investigation." The court declined to give the charge asked, but reserved its opinion. The jury returned a verdict of guilty of a simple assault. The solicitor prayed the judgment of the court. The court announced that, having reserved its opinion as to whether the plea of the defendant of former conviction is good upon the record of the mayor's court introduced in evidence, he adjudges said record is sufficient to sustain the plea of former conviction, and therefore directed the clerk to enter a judgment of "Not guilty," and directed that the defendant be discharged. The state appealed.

The record proper, which controls when conflicting with the case on appeal, states: "The jury upon their oath say that the said J. M. Taylor is not guilty, in manner and form as charged in the bill of indictment, of an assault with a deadly weapon, but is guilty of a simple assault, and thereupon it is ordered by the court that the said J. M. Taylor go without day" (the court holding the plea of former conviction as set out in the case on appeal to be good).

The record presents a singular condition of the case. There is a verdict of guilty of an offense of which, by reason of the form of the indictment, the court has jurisdiction. State v. Fesperman, 108 N.C. 770, 13 S.E. 14, and cases there cited. The verdict is left standing as rendered with a judgment of ""Not guilty." His honor, having, upon consideration of the question of the sufficiency of the evidence to sustain the plea, decided against the state, should have stricken out the verdict and sustained the plea as upon a demurrer by the state, from which an appeal could be taken. The confusion in the record arises from the failure to observe the procedure pointed out by this court in several cases. Smith, C.J., in State v. Pollard, 83 N.C. 597, discusses the authorities, and says: "It is true, double pleading is allowed only in civil cases under the statute of Anne, as was said by Pearson, C.J., in State v. Potter, 61 N.C. 338, and the jury could not be impaneled to try at one time more than the issue of a single plea; but the difficulty is obviated by allowing the second plea, and a jury trial on it, after the verdict on a preceding plea, and the reasonableness of this practice commends itself to our approval." The court in State v. Respass, 85 N.C. 535, 45 Am. Rep. 700, approves the practice pointed out in Pollard's Case. State v. Washington, 89 N.C. 535, 45 Am. Rep. 700: "Regularly, the two pleas of former conviction and not guilty should be tried separately, since the plea of former conviction implies an admission of the criminal act and is inconsistent with an absolute denial. But the practice of trying them together has become not unusual, and is often convenient." State v. Winchester, 113 N.C. 641, 18 S.E. 657.

For the purpose of disposing of this appeal we assume that the solicitor demurred to the evidence offered to sustain the plea, and that the court overruled...