48 S.E. 573 | N.C. | 1904
The defendant was indicted in the Superior Court for an assault with metallic knuckles on Jacob Dobson, and pleaded former conviction and not guilty. In support of the first plea the defendant introduced in evidence a proceeding before a justice of the peace, from which it appeared that on the same day on which the assault was committed he made affidavit before the justice charging himself with a simple assault on Dobson. The justice issued a warrant for Moore, on which is this entry: "Said defendant voluntarily came up to be tried and dealt with as the law directs." There was no return of any officer. Moore was then sworn and examined by the justice concerning the assault, and upon his own evidence was adjudged to be guilty and fined one dollar and taxed with the costs. It was admitted at the trial below that the defendant "swore out the warrant against himself, and that the justice, without notice to the injured party or any one else, and without hearing any testimony except the defendant's own statement, disposed of the case."
The Court charged the jury that if they believed the evidence the trial and conviction before the justice were a nullity and the plea of former conviction was not sustained. Defendant excepted. There was evidence tending to show that defendant assaulted Dobson with (582) metallic knuckles, and there was also evidence tending to show the contrary and that only a simple assault was committed. The jury convicted the defendant of a simple assault, and from the judgment on the verdict he appealed. The Constitution, Art. IV, sec. 27, confers jurisdiction upon justices of the peace *423 "under such regulations as the General Assembly shall prescribe, of all criminal matters arising within their counties, where the punishment can not exceed a fine of fifty dollars or imprisonment for thirty days." The General Assembly has from time to time prescribed the rules and regulations under which this jurisdiction shall be exercised. Among other provisions of the law, it is required that a complaint shall be made to the justice that a criminal offense has been committed and the complainant and any witnesses produced by him shall be examined, and it must appear by such examination that an offense has been committed before any warrant is issued. The Code, sec. 1133. It is further provided that the justice before whom any person so charged with having committed a criminal offense is brought, shall examine the complainant and the witnesses, on oath, in the presence of the defendant, and he shall then proceed to examine the defendant in relation to the offense charged (sections 1144 and 1145), and the witnesses shall not be present during such examination of the defendant. Section 1149. Either party, the complainant or the accused, is entitled to a jury trial, if demanded. Section 898.
It is made clear enough by these provisions of the law, even when considered apart from the well established methods of judicial procedure, that it was contemplated there should be an adversary proceeding in all trials of criminal cases before a justice of the peace, especially when the justice assumes final jurisdiction. It (583) was never intended that the accused should be also the accuser and the sole witness against himself. Such a proceeding would not conduce to the discovery of truth, and the detection and punishment of crime, which is the real object to be obtained, and would oftener than otherwise defeat the very ends of justice. What was done by the justice and the defendant, as shown in this case, has none of the features or characteristics of a judicial investigation. It was nothing less than a sham and a mockery of justice and should never receive the countenance and surely not the sanction of the law. The State has in fact never been heard, the injured party was never notified, and no witnesses were examined to explain or contradict the defendant's statement. If the proceeding had been found to be collusive, so that it would have appeared that the conviction and light sentence were procured by the fraud of the accused, which was acquiesced in by the Court, the law would at once have adjudged it to be a nullity. S. v.Swepson,
If one procures himself to be arrested and prosecuted for an offense which he has committed, thinking to get off with a slight punishment and to bar any future prosecution carried on in good faith, and if the proceeding is really instituted and managed by himself, he is, while thus holding his fate in his own hand, in no jeopardy. The State is no party in fact, but only such in name; the magistrate under such circumstances adjudicates nothing; "All is a mere puppet show and every wire is moved by the defendant himself." The judgment, therefore, is a nullity and is no bar to a real prosecution. 1 Bishop's Cr. Law (6 Ed.), sec. 1010. InHolloran v. State,
We have discussed the matter somewhat at length because we deemed it important to the due administration of the criminal law in this State to do so. It is useless to advance further argument or to cite additional authorities to show that the *426
plea of former conviction was not supported by the proceeding had before the magistrate. It constituted in every respect such a wide departure from the established and well known forms of judicial procedure as to be entitled to no consideration from the law, and it was therefore properly treated as a nullity. It may be well to add that a justice or other judicial officer (as said in S. v. Roberts,
No error.
Cited: S. v. Lucas,
(587)