State v. Walker

• Decision Date: 17 March 1920
• Docket Number: 209.
• Citation: 102 S.E. 404,179 N.C. 730
• Parties: STATE v. WALKER.
• Court: North Carolina Supreme Court

102 S.E. 404

179 N.C. 730

STATE v. WALKER.

No. 209.

Supreme Court of North Carolina

March 17, 1920

Appeal from Superior Court, Lenoir County; Daniels, Judge.

Louise Walker was convicted of vagrancy, and appeals. Remanded for proper judgment.

A sentence of imprisonment for 12 months for vagrancy cannot be sustained under Laws 1919, c. 215, an act passed for the repression of prostitution, where the prosecution was heard in the superior court on a warrant issued by the mayor, and not on appeal from the recorder's court, nor under an indictment found by a grand jury; the punishment for all offenses condemned in such act exceeding imprisonment for 30 days, or a fine of $50.

The defendant was convicted before the mayor of Kinston on a warrant charging that she "did unlawfully and willfully violate a law of the state of North Carolina (No. ___ section ___), by being a vagrant," and appealed to the superior court, where she was again convicted. After verdict the defendant moved in arrest of judgment, and the solicitor for the state asked to be allowed to amend the warrant. The motion to amend was allowed, but the amendment, which added to the warrant subsection 7 of section 3740 of Pell's Revisal, defining vagrancy, was not reduced to writing until after the term of court expired. The defendant excepted. The motion in arrest of judgment was overruled, and defendant excepted. His honor then sentenced the defendant to 12 months in jail, finding in the judgment that this was a second conviction for the same offense, and the defendant excepted and appealed.

Joe Dawson, of Kinston, for appellant.

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

ALLEN J.

The sentence of imprisonment for 12 months cannot be sustained under chapter 215, Laws of 1919, an act passed for the repression of prostitution, because the punishment for all the offenses condemned in that act exceeds imprisonment for 30 days or a fine of $50, and this prosecution was heard in the superior court on a warrant issued by the mayor, and not on appeal from the recorder's court, nor was any indictment found by a grand jury.

It is also clear from the amendment allowed that the court was not proceeding under the act of 1919, as it is in the language of section 3740, subsec. 7, of Pell's Revisal, which defines vagrancy and limits the punishment to a fine of $50 or imprisonment for 30 days.

Nor can the judgment be approved on the ground that this is a second conviction for the same offense because the first conviction is not alleged in the warrant. This was the precise question decided in State v. Davidson, 124 N.C. 839, 32 S.E 957, and it is in accord with the authorities elsewhere.

"Where in case of repeated convictions for similar offenses, the statute imposes an additional penalty, an indictment for a subsequent offense must allege the prior convictions, since such convictions, although they merely affect the punishment, are regarded as a portion of the description of the offense." 22 Cyc. 356.

The judgment must therefore be set aside, and the question remaining for decision is whether the warrant is sufficient to sustain any judgment.

It charged vagrancy before amendment, which seemingly is as specific and definite as the warrant which was held to be valid in State v. Moore, 166 N.C. 284, 81 S.E. 294 but, however this may be, the court, exercising its...