State v. Wise
| Decision Date | 31 January 1872 |
| Citation | 66 N.C. 120 |
| Parties | STATE v. CHANEY WISE. |
| Court | North Carolina Supreme Court |
1. Where time is not of the essence of the offence, and there is but one statute applicable to the matter, although that statute be recent, or, recent and not to take effect until after a specified time, the indictment need not contain an averment that the offence was committed after the statute went into operation
2. But where there are two statutes, in reference to the same offence, and the one of subsequent date changes the nature of the offence, or the punishment of the same, the indictment must, by proper averment, refer to the statute under which it was found, so that the Court may see the exact character of the offence, and the nature and measure of the punishment to be imposed.
3. The 20th sec., 35 chap., Rev. Code, is intended to cure only formal defects in the indictment, after judgment, and not omissions of averments, necessary to enable the Court to give judgment intelligently, and, as in this case, to see whether to proceed under the one statute or the other.
4. Therefore, where, by the Act of 1869, the punishment for arson was confinement in the penitentiary, and by the Act of 1871, death, and the offence was committed after the last mentioned act, but the time designated in the indictment was before it, and there was no averment in the indictment specifying which of the two acts it was found under, and there was a verdict of guilty, and judgment of death, held, that the judgment must be arrested.
5. Whether the Solicitor may move for judgment, treating the indictment as found under the Act of 1869,-- quere.
State v. Lane, 2 Dev., 567. State v. Chandler, 2 Hawks, 439, and State v. Putney, Phil., L. 543, cited and approved.
This was an indictment for arson, tried before Clarke, Judge, at Fall Term 1871, of Craven Superior Court.
The following is a copy of the indictment:
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¦“NORTH CAROLINA,¦)¦SUPERIOR COURT, ¦
+----------------+-+----------------¦
¦CRAVEN COUNTY. ¦)¦Fall Term, 1871.¦
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The jurors for the State, upon their oath, present, that Chaney Wise, late of Craven county, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the first day of January, in the year A. D., 1871, with force and arms, at and in, said county, feloniously, unlawfully, wilfully and maliciously, did set fire to and burn a certain dwelling house of one Joseph A. Mason, there situate contrary to the form of the statute, in such, case made and provided, and against the peace and dignity of the State.
JOHN V. SHERRARD, SOL.”
The evidence was: That the house was burnt, on the 8th day of August, 1871. Evidence was also introduced tending to connect the prisoner with the arson. He was convicted by the jury. The prisoner's counsel moved in arrest of judgment. The motion was overruled by His Honor, and sentence of death pronounced. From which judgment the prisoner appealed to the Supreme Court.
Attorney General for State .
J. H. Haughton for defendant .
When time, is not of the essence of the offence, and there is but one statute applicable to the matter; although the statute be recent, or, although it be recent, and is not to take effect until after a specified day, the indictment need not aver that the offence was committed after the statute went into operation, for the averment, that the act was done, against the form of the statute, and this averment being found by the verdict, which is a part of the record, makes it manifest to the Court, that the fact was done so as to be criminal, within the statute; that is to say, it was committed after its passage, or, after the day specified for it to take effect. State v. Lane, 2 Dev., 567. State v. Chandler, 2 Hawks, 439.
We have stated the principle, established by these cases, with the restriction, where there is but one statute applicable to the matter, for that was the fact in the cases cited. The question is left open, in cases where there are two statutes applicable to the matter; as in our case. We are to decide, whether the fact of there being two statutes applicable to the matter, in respect to the punishment only, prevents the application of the principle that the indictment need not aver, that the offence was committed after the statute went into effect.
By the Act of 1869, the punishment for arson or burglary, is confinement in the penitentiary. By the act 1871, the punishment for these crimes, is death: as the judgment was upon this act, it is set out:
SEC. 1. “Any person convicted according to due course of law of the crime of arson or burglary shall suffer death.”
SEC. 2. “All laws or parts of laws enacted since the adoption of the present State Constitution, fixing punishment for arson and burglary, are hereby repealed, so far as the same might apply to such crimes hereafter committed.”
The statute is not worded with perspicuity, but the meaning is: the punishment for arson and burglary committed before 4th April, 1871, shall continue to be confinement in the penitentiary, under the Act of 1869; but the punishment for these crimes committed after the 4th of April, 1871, shall be death.
So we have two statutes, not affecting the nature of the crime, and having reference only to the punishments. The statutes do not conflict, so that the former is not repealed by the latter. Nor are the statutes cumulative, so that the two might be embraced in an averment, “contrary to the form of the statutes; but the statutes are independent and separate, one covering arson and burglary, committed before, and the other covering the same crimes committed after, 4th April, 1871.
The indictment avers that the crime was committed “contrary to the form of the statute, in such case made and provided,” and the jury found the...
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