55 S.E. 626 | N.C. | 1906
The defendant was tried and convicted upon an indictment in the following words, towit: "The jurors for the State, upon their oaths, present that Joseph Hodge, late of the county of Rutherford, on the 4th day of June, in the year of our Lord one thousand nine hundred and five, with force and arms, at and in the county aforesaid, did unlawfully, wilfully and feloniously compound a felony, to-wit: Did *522 swear out a warrant before Squire H. S. Taylor, against Addie Yelton and William Yelton, charging them with the larceny of certain berries and cherries, and after they had been arrested on said warrant, and before they had their trial, proposed to said defendants and their friends, that if they would pay him ten ($10) dollars and pay (666) his lawyer five ($5), dollars that he would drop the matter and not appear against them. Said money was paid and said prosecution, abandoned, against the form of the statute in such case made and provided, and against the peace and dignity of the State." Upon the rendition of the verdict defendant moved in arrest of judgment. Motion denied. Judgment, and appeal by defendant. Defendant in this Court assigns several grounds for his motion for arresting the judgment. We have found no difficulty in disposing of all save one: that the indictment does not aver that the persons with whom he is charged with entering into the agreement and from whom he received the money as the consideration for "dropping the matter and not appearing as a witness," on the trial, were guilty of the larceny charged against them. We have given the question anxious and careful examination and find the authorities unsatisfactory and conflicting.
In the absence of any statute, in this State, defining the offense of compounding a felony, we are compelled to look to common-law sources. Our Reports disclose but one indictment for the offense, and from this we derive no aid in the solution of the question presented here. There was no motion presenting the question respecting the sufficiency of the indictment. S. v. Furr,
It would seem that, in the light of the language uniformly used, there could be no doubt that before a conviction can be had. It must be made to appear that a felony has been committed by the person with whom the corrupt agreement was made. In the indictment before us, the Solicitor charges that defendant "did unlawfully, wilfully, and feloniously compound a felony."
His Honor, following the decision of this Court in S. v. Furr, supra, instructed the jury "that before they could convict they would have to find, beyond a reasonable doubt, that the Yeltons had committed a felony." The Editor of Cyc. (vol. 8, p. 495) says: "The actual commission of a preceding crime would seem to be essential to the offense of compounding the same, and, in the majority of jurisdictions, this is the view taken, although in some the rule is otherwise," citing S. v.Leeds,
In Swope v. Insurance Co., 93 Pa. St., 251, it is said: The guilt of the party accused and the agreement not to prosecute are essential ingredients in the compounding of a felony." Watt v. State,
Frilby v. State,
There is a class of offenses involving an obstruction of public justice in which it is held that it is not necessary to charge, or prove, the *525
commission of the crime, the prosecution of which is interferred with Persuading or inducing a witness not to attend Court, whether under subpoena or not, is indictable. Inducing one to absent himself from attending as a witness, before a justice, in an examination of a charge for violating the criminal law, is a high-handed offense. (670) Revisal, sec. 3696; In re Young,
The form of the indictment for this offense is found in Chitty Crim. Law, 235. By Stat. 18 Eliz., it is made a misdemeanor to agree, for money, to compound or withdraw a suit for a penalty without the consent of the Court. Under this statute it is held that it is not necessary to allege or show the commission of the act for which the suit or prosecution is instituted. Regina v. Best, 38 Eng. Com. L., 159. It would seem that this statute is a part of the common law in force in this State. S. v. Carver,
A careful examination of every case at our command fails to discover any one in which an indictment is sustained which omits the averment that a crime had been committed. The judgment must be arrested.
It is but just to the learned Judge who tried the case to say that it does not appear that this objection was raised before him. As we have seen, he correctly instructed the jury. It may be well enough to suggest that the bill does not very clearly allege any agreement to forbear prosecution. It would conform more closely to the precedents to charge clearly the agreement which is the gist of the offense.
We also note that the indictment charges that defendant "proposed to said defendants and their friends," etc., whereas, the evidence was "that the father of the Yeltons, through his friends, compromised the case," etc. It is not clear that this was not a variance, (671) entitling the defendant to an acquittal on this indictment. For the reasons given, the motion in arrest must be allowed.
Judgment Arrested. *526