70 S.E. 833 | N.C. | 1911
Laws Special Session 1908, ch. 125, provides that "It shall be unlawful for any person to act in a disorderly manner by being drunk or using profane, obscene, or boisterous language on any public road in Robeson County," and places the violation of this statute within the jurisdiction of a justice of the peace.
This indictment is found against the defendant at common law and alleges that the defendant, in Robeson County, "in certain public highways there situate and in the presence of divers persons then and there being, did curse in a loud voice and use profane language in the presence of divers citizens of the State there being, passing, and repassing, and did continue in a loud voice to repeat said profane language for the space of 5 minutes (the indictment reciting the profane words), with great disturbance and to the common nuisance of the good citizens of the State." The defendant moved to quash the bill on the ground that its allegations were covered by the act of 1908, above set forth, (640) which created an offense within the jurisdiction of a justice of the peace. The indictment at common law is within the jurisdiction of the Superior Court, the punishment not being restricted to "30 days' imprisonment or a fine of $50." His Honor quashed the bill, and the State appealed.
The sole question presented, therefore, is whether the acts recited *505
in the statute of 1908 are sufficient to constitute the same offense which was indictable at common law. It is very clear that they do not. In S. v.Barham,
The subject is fully gone into by Merrimon, J., in S. v. Cainan,
It is true that if the defendant had been tried on a warrant before a justice of the peace under the statute of 1908, he could (641) have been convicted upon proof of the charges contained in the present indictment. But the opposite is not true, that upon trial upon this indictment the defendant could have been convicted upon proof only of the acts which would constitute the offense under the statute of 1908. So on an indictment for manslaughter a defendant may be proven guilty of an assault, but on proof of an assault only he can not be convicted of manslaughter.
The acts necessary to be proven to constitute an offense under the statute of 1908 are fewer and different in extent from those necessary to constitute the offense at common law which is charged in the indictment in this case. The statute, therefore, does not constitute a substitute for the common-law offense. The two offenses are not identical, and the judgment quashing the indictment must be
Reversed. *506