19 N.C. 435 | N.C. | 1837
— The constitutional question supposed to be involved in this case, has been elaborately and ably argued, both for the defendant and the state, and has been most deliberately considered by the Court. It seems to us, however, upon an inspection of the record, that a decision of this question is not necessary for our adjudication in the case before us, and that it would be indecent and improper, to pronounce any opinion upon so weighty a question as the constitutionality of an act of the *436 legislature, unless in a case where its determination was absolutely required.
The enactments of the act of 1831, apply only to cases "where a free negro or free person of colour shall be convicted of an offence against the criminal laws of the state, and sentenced to pay a fine, and it shall appear to the satisfaction of the Court, that the free negro, or free person of colour so convicted, is unable to pay the fine imposed." In these cases, and in these only, the act enjoins, that the fine shall be at least equal to the amount of the costs of prosecution, and that if he be unable to pay the fine imposed, the Court shall direct the sheriff of the county, to hire the free negro or free person of colour "so convicted," to any person who will pay the fine for his services for the shortest space of time.
Waiving, for the present, the inquiry, whether this act be repugnant to any of the provisions in our Constitution, for securing the personal liberty of freemen, against imprisonment for debt, after ascertained insolvency, or against excessive fines, unusual punishments, or other forbidden restraints; and also whether its provisions be compatible with the power to grant pardons and reprieves, which that Constitution expressly grants to the governor of the state; all of which questions have been raised here, and are well worthy, in a fit case, of patient and mature consideration; and assuming it to be wholly clear from constitutional objections, it is certainly an act highly penal in its character, since it compels the assessment of a fine, at least equal in amount to the costs of prosecution, upon one unable to pay it, and for any offence, however trivial in kind, or mitigated in degree; and because it provides for the collection of this fine by a rigorous procedure, not authorized against any other freeman, for any crime however atrocious. On no principle of judicial construction, therefore, can we extend its application beyond its distinct enactments.
These are explicitly confined to cases of conviction of criminal offences. Conviction, properly so called, could only take place according to the common law, either upon confession, or verdict, or where the trial was by battle, *437
upon recreancy. Co. Lit. 390, b. By confession is meant express confession; where a person charged directly confesses the crime with which he is charged. Blackstone accordingly states, "Conviction may accrue two ways; either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country." 4 Bla. Com. 362. This direct confession is the highest conviction which can be, and carries with it so strong a presumption of guilt, that an entry on record, quod cognovitindictamentum, c., in an indictment of trespass, estops the defendant to plead not guilty, to an action brought afterwards against him for the same matter.
We are of opinion that the Court below erred in rendering a judgment against the defendant, under the act of 1831; because the defendant not having been convicted *438 of an offence, his case was not embraced within that act. The sentence rendered, therefore, must be reversed, and the Superior Court of Robeson be directed to render judgment upon the submission of the defendant as at common law; exercising its discretion according to the nature of the offence, and the circumstances of the defendant.
PER CURIAM. Judgment reversed. *439
