79 S.E. 284 | N.C. | 1913
WALKER and ALLEN, JJ., concur in result. The defendant was convicted of perjury in the recorder's court of Edgecombe. On appeal to the Superior Court, he was tried on the original warrant and again convicted. The defendant excepted on the ground that he could not be tried for this offense except upon a bill of indictment found by a grand jury. He relies upon the provision in the Constitution, Art. I, sec. 12: "No person shall be put to answer a criminal charge, except as hereinafter allowed, but by indictment, presentment, or impeachment." Section 13 of the same article which guarantees the right of trial by jury is complied with by a jury trial being given on appeal. S. v. Lytle, 138 N.C. at page 742. The requirement of an indictment, presentment, or impeachment is not dispensed with "except as hereinafter allowed" in section 13 in these words: "The Legislature may, however, provide other means of trial for petty misdemeanors, with the right of appeal."
The question presented, therefore, is whether perjury is a petty misdemeanor in Edgecombe County. Public-Local Laws 1911, ch. 472, provides that the recorder's court "shall have exclusive original jurisdiction of all other criminal offenses committed within (413) the county below the grade of felony, and the same are hereby declared to be petty misdemeanors."
Revisal, 3291, defines the line between felonies and misdemeanors as follows: "A felony is a crime which is, or may be, punishable by death or imprisonment in the State's Prison. Any other crime is a misdemeanor." The State, however, relies upon Revisal, 3615, which styles perjury a misdemeanor, though it further provides that it may be punished "by a fine not exceeding $1,000 and imprisonment not more than ten years in the State's Prison." There is a palpable contradiction in the two sections, and while the Revisal must be construed together, yet if one provision leads to a conflict with the Constitution, and the other does not, we must take the latter.
At common law perjury and forgery were misdemeanors, it is true, but there was no imprisonment in the State's Prison prescribed. Revisal, 3615, is a statute which was enacted in 1791 and conformed to the common law, which at that time made perjury a misdemeanor, and the words "State's Prison" were written into this section in The Code of 1883, sec. 1092. The statute which is now Revisal, 3291, defining the line between felonies and misdemeanors, was enacted in 1891, just one hundred years later, and is the latest expression of the legislative will. The words in section 3615 making perjury a "misdemeanor," which was enacted in 1791, evidently retained that definition in Revisal, 3615, by inadvertence, notice not being taken of the fact that imprisonment *331 in the State's Prison, which had been added to the punishment in 1883, made it a felony under Revisal, 3291.
In S. v. Shaw,
In S. v. Fesperman,
In S. v. Holder,
The Legislature may prescribe different punishments for the same offense, in different counties, and it may reduce the punishment for all offenses, even those now punished capitally, to an extent that would make any offense a "petty misdemeanor." But calling an offense a petty misdemeanor does not make it so, when the punishment imposed makes *332
it a felony. In S. v. Lytle,
We are therefore of opinion that the offense of perjury being punishable in the county of Edgecombe by imprisonment in the State's Prison, that it is not an offense "below the grade of felony," and that the statute, Public-Local Laws 1911, ch. 472, does not declare it to be a "petty misdemeanor." Hence the recorder's court had no jurisdiction thereof, and on appeal to the Superior Court the defendant could not be tried, unless a bill had been found by a grand jury.
Judgment arrested.
WALKER and ALLEN, JJ., concur in result.
Cited: S. v. Tripp,