94 N.C. 920 | N.C. | 1886
This is the only question properly presented by the record for our consideration, but we think it proper to notice in this opinion, the judgment pronounced against the defendant in the Inferior Court.
The errors assigned by the Solicitor were: 1. The granting the motion in arrest. 2. For error or errors appearing on the record: "and it is agreed by counsel, that the record shall constitute the statement of the case, together with this assignment of error. " This kind of practice cannot have the sanction of this Court. It is (923) incumbent upon the appellant, in all appeals, to send up a statement of the case, in which the errors to his prejudice complained of, are set forth. It is in effect the bill of exceptions, and when there is no bill of exceptions, nor statement in nature thereof, accompanying the record sent to this Court, the judgment below is affirmed as matter of course, unless there be found some error in the record, which it is the duty of the Court to look into. State v. Orrell,
Notwithstanding there is no statement of the case, we have looked into the record, and our opinion is, there was error committed by both the Superior and Inferior Courts. In the former by arresting the judgment, and in the latter by the sentence pronounced upon the defendant.
The indictment was well drawn, and in accordance with precedents approved by this Court — and it is now too late to inquire whether they were correct.
The indictment in this case is drawn in strict conformity to the form of the indictment in the case of State v. Walker,
In our opinion, there was error in arresting the judgment, and in the judgment of the Inferior Court in sentencing the defendant to two years imprisonment in the State's prison. Neither that, nor any other Court, had the power to impose such punishment in a case like this. It is a simple misdemeanor, and no specific punishment having been prescribed by the Legislature, it is punishable as misdemeanors at common law, that is by fine or imprisonment in the common jail, or both. It is only felonies — The Code, Secs. 1096 and 1097 — where no specific (924) punishment is prescribed, and offenses that are infamous, or done in secrecy and malice, or with deceit and intent to defraud, that may be punished with imprisonment in the penitentiary. But this is not one of those offenses, and because it may have been done secretly or at night, does not bring it within either class of those offenses.
There is error. Let this be certified to the Superior Court of Bertie, that the case may be remanded to the Inferior Court of that County, that that Court may proceed to judgment in conformity to this opinion, and the law of the land.
Error. Reversed.
Cited: S. v. Smith,
