4 S.E. 530 | N.C. | 1887
Lead Opinion
We cannot hesitate to concur with the Court below in deciding that serious damage was done to the prosecuting witness by the ferocious and unprovoked beating inflicted upon him by the defendant, as charged in the indictment and proved on the trial. The injury was not simply painful and humiliating — it disfigured the face, seriously bruised the eyes — closed one of them entirely for days, and probably permanently impaired the sight. It seems to us that there can be no question that serious damage was done. The justice of the peace, therefore, had no jurisdiction of the offence, and any judgment he undertook to render in a criminal action before him on that account was a nullity.
The plea of autre fois convict was properly not sustained. State v. Huntley, 91 N. C., 617.
The Criminal Court had jurisdiction of the simple assault and battery charged in the indictment, if more than six months elapsed next after the time when the offence was perpetrated, and before the beginning of the present action; and this is none the less so because the justice of the peace did not have jurisdiction. The jurisdiction of the Criminal Court was presumed, and the burden was on the defendant to prove, as matter of defence, that less than six months so elapsed, in order to'defeat it. As no such defence was made, and no question in that respect was raised on the trial, it must be inferred that the Court had jurisdiction of the offence, as charged. The presumption in favor of it was
It is true that the defendant might have been indicted— and it seems that regularly he ought to have been — for an assault and battery in which serious damage was done. The present indictment is not sufficient for that purpose, because it does not charge that serious damage was done, its nature and extent, but it charges the simple offence; and the Court having jurisdiction it could, as it did do, give an appropriate judgment upon the verdict of guilty. One advantage of charging the offence as one in which serious damage was done is, that the jurisdiction cannot be ousted by showing that six months had not lapsed, as above indicated.
It may seem somewhat singular that the justice of the peace had not jurisdiction of the offence as a simple assaxilt and battery, and the Criminal Court had. The reason and explanation of such seeming inconsistency is, that the Criminal Court has the larger jurisdiction — it had jurisdiction of the simple offence as indicated, and as well and exclusively of the offence accompanied and rendered more aggravated by serious damage.
The error assigned as to the rendition of the verdict of the jury cannot be sustained. Before the Court received and entered it, at once it was suggested there was mistake and misapprehension of the jury, of which they became presently conscious upon explanation from the Court; they returned for further consideration of their verdict, corrected the error, and in a few minutes rendered a verdict of guilty, without hesitation. It would savor of trifling, to allow so small an irregularity to delay, perhaps defeat®),ijstice, especially in a case in which plainly no injustice is done the party complaining.
The rights of the accused must be protected by every safeguard, but this does not imply that he is entitled to have substantial advantage — opportunity to defeat the ends of
There is no error. Let this opinion be certified to the Criminal Court according to law.
Affirmed.
Dissenting Opinion
dissenting. The indictment is for a simple assault and battery, and fails to charge any matter in aggravation of the offence, or that any serious injury followed. On the trial the defendant showed, in his defence, that he had been convicted and punished for the offence before a justice of the peace, who had assumed and exercised jurisdiction over it. It was in evidence, however, that the assault was made with great violence, and the beating so excessive as to produce serious damage to the said Fri-berg (prosecutor), while no averment of such damage was contained in the warrant, so as to lift the crime to a higher grade and place it beyond the cognizance of the justice, except when investigating the matter as an examining magistrate. The accused is, therefore, put upon a second trial in the higher court for the same offence and charged in like form. If the indictment had further alleged that it was attended with “serious damage” to the person assaulted, specifying wherein it consisted, so that, upon inspection, it could be seen to belong to a superior jurisdiction, as required by The Code, §§892, 987, and the construction given those sections when enforced in State v. Cunningham, 94 N. C., 824, the jurisdiction would have been exclusive in the higher court,. but in the absence of such allegations the case is one of simple assault, of which, for six months, the justice has sole cognizance, and afterwards concurrent with such court. As it is an unvarying principle of the criminal law that no one shall be twice punished under judicial sentence for the same offence, it results that if the jurisdiction assumed and, upon examination of the facts, exercised by the justice, is conferred by law, the plea of a former conviction necessarily
The case of State v. Huntley, 91 N. C., 617, does not dispose of the question now presented, for which there had been in that, as in this case, a trial and conviction before a justice of the peace, with similar pleas interposed upon the trial in the Superior Court. The special verdict presents the facts for the ruling of the Court upon the plea of not guilty, and this Court limited the inquiry to the infliction of serious damages, as affecting its own jurisdiction in the case.
What constitutes serious damage in the sense of the statute, as contradistinguished from the damage resulting from an assault, is a problem not of easy solution, and, in advance, to define the line of separation a difficult task, if practicable at all. In cases approximating the line much must be left to the sound judgment of the trying justice upon the facts before him, and such seems to be the character of our legislation on the subject. Bat. Rev., ch. 33, §§114 to 122, inclusive.
The justice, by these provisions, is to pass upon the nature and extent of the assault, and if it shall “appear to him” at the hearing “that a deadly weapon was used, or that any serious damage was done, or that the offence deserves a more severe or other punishment than it is within his jurisdiction to impose,” he is to send the party to the Superior Court to answer the charge, thus making Ms judgment of the demerits of the criminal act the test of his own jurisdiction in entertaining it
Some change has been made in The Code, in order to a more distinct line of demarcation between the jurisdictions, than to leave it wholly to the justice’s judgment as to what punishment ought to be inflicted, but still committing to him the determination of the question whether those additional facts exist that raise the offence up to a higher grade. The Code, §§896 and 897. Section 896 directs what the jus
The other section is in these words: “When the justice shall be satisfied that he has jurisdiction, if no jury shall be asked for, he shall proceed to determine the case, and shall either acquit the accused or find him guilty, and sentence him to such punishment as the case may require, not to exceed, in any case, a fine of fifty dollars or imprisonment in the county jail for thirty days.”
Most plainly, to my mind, this commits to his adjudication the question whether the damages are serious, within the purview7 of the act., and when he “shall be satisfied” upon the point he must proceed with the trial, and punish if the accused is guilty. This is mandatory upon him when he makes his adjudication, and can it 1 ethat, after this punishment he can be punished again because the Court or jury in the Superior Court may come to a different conclusion as to the extent of the damage done? If this he so, there would seem to be no escape from a double penalty.
I do not include in the proposition cases where a deadly weapon, so designated by law, as a pistol, dirk or knife, has been in the assailant’s hands, because the law determines the character of such an assault, but such a,s the present, and those in which the instrument is deadly, not per se, but by the manner and conditions under which it is used, as explained supra. It may be, that if the charge was in form of an offence cognizable only in the Superior Court, the justice should examine only as a committing magistrate, with a view of binding over, but when the charge is not such upon its face, but of an act unaccompanied with matters in aggravation, and these only appear and are developed in the evidence, he must determine, as in our case, the extent of the injury and of the damage done, and whether the damage is or is not serious, and his action consequent upon the results of the inquiry, as the accused cannot escape from the pun
There is no suggestion in the record that a fraud was practiced upon the jurisdiction of the Criminal Court and that the trial in the justice’s court was resorted to as a scheme to evade the just responsibility incurred by the accused; and if so, the double punishment would be caused by his own voluntary action in the premises, and the first trial would be no obstacle to the second. But when the jurisdiction is bona fide exercised, and such it must be assumed to have been in the absence of any imputation, the great and fundamental principle must be maintained, that no person should be twice punished by judicial tribunals, having rightful cognizance of the offence, for one and the same act.
Lead Opinion
SMITH, C. J., dissenting.
(S. v. Huntley,
The plea of autre fois convict was properly not sustained. S. v.Huntley,
The criminal court had jurisdiction of the simple assault and battery charged in the indictment, if more than six months elapsed next after the time when the offense was perpetrated, and before the beginning of the present action; and this is none the less so because the justice of the peace did not have jurisdiction. The jurisdiction of the criminal court was presumed, and the burden was on the defendant to prove, as *525 matter of defense, that less than six months so elapsed, in order to defeat it. As no such defense was made, and no question in that respect was raised on the trial, it must be inferred that the court had jurisdiction of the offense, as charged. The presumption in favor of it was not rebutted. S. v. Earnest, post, 740, and cases there (678) cited.
It is true that the defendant might have been indicted — and it seems that regularly he ought to have been — for an assault and battery in which serious damage was done. The present indictment is not sufficient for that purpose, because it does not charge that serious damage was done, its nature and extent, but it charges the simple offense; and the court having jurisdiction it could, as it did do, give an appropriate judgment upon the verdict of guilty. One advantage of charging the offense as one in which serious damage was done is, that the jurisdiction cannot be ousted by showing that six months had not elapsed, as above indicated.
It may seem somewhat singular that the justice of the peace had not jurisdiction of the offense as a simple assault and battery, and the criminal court had. The reason and explanation of such seeming inconsistency is, that the criminal court has the larger jurisdiction — it had jurisdiction of the simple offense as indicated, and as well and exclusively of the offense accompanied and rendered more aggravated by serious damage.
The error assigned as to the rendition of the verdict of the jury cannot be sustained. Before the court received and entered it, at once it was suggested there was mistake and misapprehension of the jury, of which they became presently conscious upon explanation from the court; they returned for further consideration of their verdict, corrected the error, and in a few minutes rendered a verdict of guilty, without hesitation. It would savor of trifling to allow so small an irregularity to delay, perhaps defeat, justice, especially in a case in which plainly no injustice is done the party complaining.
The rights of the accused must be protected by every safeguard, but this does not imply that he is entitled to have substantial advantage — opportunity to defeat the ends of justice — arising from slight immaterial irregularities that work no injustice to him. S. v. (679)Bishop,
There is no error. Let this opinion be certified to the criminal court according to law.
Affirmed.
