State v. Western North Carolina R.R. Co.

• Decision Date: 31 October 1883
• Citation: 89 N.C. 584
• Court: North Carolina Supreme Court
• Parties: STATE v. WESTERN NORTH CAROLINA RAILROAD COMPANY.

89 N.C. 584

STATE

v.WESTERN NORTH CAROLINA RAILROAD COMPANY.

Supreme Court of North Carolina.

October Term, 1883.

INDICTMENT for obstructing a public highway, tried at Fall Term, 1883, of MADISON Superior Court, before Gudger, J.

The offence charged is that the defendant company, in constructing its line of road, used the public highway from the Tennessee line to Warm Springs, in Madison county, and thereby obstructed the same, so that the citizens of the state cannot pass along or over it with their vehicles, &c., and that the defendant did not construct another road as good and convenient, &c. The solicitor of the state appealed from the ruling of the judge upon the question which is the basis of the decision of this court, the facts in reference to which are sufficiently set out in its opinion.

Attorney-General for the State .

No counsel for the defendant.

SMITH, C. J.

A copy of the bill of indictment having been delivered by the sheriff to a local agent of the defendant company, without process of any kind in his hands, and the company failing to appear and answer the charge at the next term of the court, the solicitor moved that a plea of “not guilty” be entered and the accused put on trial. The motion was refused, and the solicitor, on behalf of the state, was allowed to appeal from the ruling to this court.

It has been too often declared to need reiteration that no appeal lies from any ruling of the court in the conduct of a criminal prosecution until its determination by a final judgment, which, unreversed, puts an end to the cause, and only by the state in a few specified cases, to no one of which does this belong. State v. Lane, 78 N. C., 547; State v. Hinson, 82 N. C., 540; State v. Pollard, 83 N. C., 597; State v. Powell, 86 N. C., 640.

The ruling of the court, that the defendant had not been brought into court, left the cause to be proceeded with as if no action to that end had taken place, and the indictment was still depending. The appeal must therefore be dismissed.

But it is not improper that we should express an opinion as to the proper mode of bringing into court a corporation charged with a criminal offence--the point intended to be presented, and one of practical importance in the administration of the criminal law.

At common law this was done by the issue of a summons and its service upon the principal or head officer of the company, and if it did not appear, as it only could appear, by a duly constituted attorney, a distringas was awarded, under which its goods and lands were seized to compel an appearance. 1 Tidd. Pr., 116; 2 Sellon Pr., 148; Ang. & Am. Corp., §637; 1 Whar. C. L., §89.

But a method of procedure is prescribed by statute in this state, as we presume it has been in most if not all of the others, which dispenses with that furnished by the common law, if not itself obsolete, to be found in C. C. P., § 82, and in THE CODE, §217.

It is there provided that the summons issued by the clerk of the superior court shall be served by delivering a copy thereof, “if the suit be against a corporation, to the president or other head of the corporation,...