*1 n IN THE SUPREME COURT. Ostwalt. State and had them in his and arrested the defendants custody them for a consideration. discharged Code, under The may A of the peace, justice ” one, not cases extraordinary appoint being and his decision is conclu- mandate, to execute his party, Dula, cases arise. sive as to when such covered con- 428. The fully charge and there was no trial, tentions made on the exception to it.
No Error. STATE v. L. OSTWALT. WILLIAM in Criminal Bastardy Proceedings Appeal — A Constitution. A eqwit— etions —Autrefois subject existing upon preeeeding 1. A statutes under peace justice a criminal action of which jurisdiction. action, cannot, under the Con- Being 2. a criminal stitution, jeopardy, acquittal put and an he twice conclusive, justice and unreviewa- is final and prosecutrix. of the State ble Code, appeal by allowing in Section The clause ” unconstitutional. or the woman affiant pointed in criminal actions can 4. Oases in which the State Avery, out J. J., Claris, dissents. commenced before bastaedy, PROCEEDING father of with the defendant being the peace, charging The defendant bastard child. acquitted, her unborn Court. and the Superior prosecutrix appealed Term, trial at came on for case, August This on appeal, Honor, his Nor- Court, before 1895, of Superior Iredell FEBRUARY TERM, 1896. 0.] *2 wood, J., and In said court the defendant entered jury. the of former and not plea acquittal The follow- guilty. were issues submitted to the the court: jury by “ 1. Is the prosecutrix bound former acquittal, upon ‘ a trial before of the Answer, No.’ justice peace?
“2. Is the defendant the father of the bastard child of the Answer, ? prosecutrix ‘Yes.’”
Defendant was convicted, and appealed. Defendant of bis excepted of overruling plea former acquittal. General, Attorney for‘the State.
Mr. L. for Caldwell, (appellant). In of'1879, the Act Oh. Sec. 2,{The Avery, J.: Code, Sec. it was 35,) that when the of provided issue shall be father, found paternity the or putative when he admits the he shall be fined paternity, not dollars, ten which shall judge justice exceeding go to the school fund of the In the same section county.” was further that shall make an allow provided dollars, ance to woman not the sum of exceeding fifty to be in such installments as the paid judge justice fit,” see &e. This was first enacted chap ter of the Acts of 1879 which was for the passed purpose, face, its the criminal appears upon enlarging juris Constitution, diction (under justices Art. IY., Sec. so that 27) punishment by limiting could not a fine of dollars or for exceed imprisonment fifty Act, After of the however, thirty days. passage attention of this Court had never been called fact a fine until that statute imposed by argu ment case Burton, N. 655. The Court rest the decision that case other agreed COURT. THE SUPREME 123 0 v. Ostwalt. who delivered opinion but the Justice grounds, himself for and expressed Court discussed the question, had made bastardy Act of 1879 the opinion before offence, cognizable originally held, Court term the next At succeeding the peace. C., 234, McRae (Justice in Myers Stafford, and Justice Olaeu dissenting), the opinion delivering misdemeanor, Code made petty section 35 of The were commissioners consequently convicted a defendant liable for putting damages the fine until on the roads offence to work of that public *3 of the At the next term ruling and costs paid. should was action was a criminal that the the Court proceeding was and it C., 115 N. Parsons, 730,) affirmed (in was a ver there that, where an undivided Court held by must discharged dict guilty, of of ten to the fine of all as and relieved liability custody, costs, for the requi and jail upon remaining dollars But it was held oath'. time site prescribed taking dollars, while the of that the allowance fifty in those cases the defend it was of contingent upon afinding making fine— of the was the father —as was imposition ant under that allowance, part old still, like the imposed of its exercise of the Act Legislature passed by the Act that, as but enact to police regulations, power became, mother, she to 'the the allowance made payable defendant, law, of a creditor in contemplation fraud Oode, could, 2948 of The under Section suggest insolvent, as to discharge, the defendant’s contest from its payment. Court, as now Wynne,
In was a dissent, a constituted, held, bastardy without child, on the offence complete begetting EEBEBAEY TEEM, 1896. C.] and was witbin the exclusive of a of jurisdiction for months twelve thereafter.
We are now all overrule of those urged adjudications made full upon consideration two. question courts —the of the members of which were differ- majority constituted —and ently declare of a imposition fine as violation law pecuniary punishment does not, create ipso criminal offence. This facto, persistent effort on the of counsel to overturn the former part rulings Court makes it adduce the again necessary author: ities were founded. they Constitution amended in I.,. 1875, (Art. IV., 13.,
Sec. and Art. had authorized the 27,) Legis- lature to for the trial of provide misdemeanors with- petty out the intervention of a and the line of a. jury, boundary should jurisdiction justice’s depend upon punishment, statute. It must be inferred when prescribed by associated with number misde- meanors, whereof act was. same punishment reduced so as to make them before it cognizable justice, accidental, was not but with a constitute purpose that for offence, the first time was made punish- ten able fine of dollars. But not do the cir- *4 only an cumstances indicate actual intention on the of the- part intention, a to but create Legislature apt termini, used,exvi words can be to construed mean nothing Was else. the construction of the Act of in the 1879, three- Court, erroneous, recent this as now con- decisions of it is it was ? tended
It is familiar that words a must statute be learning construed to their technical unless a. according meaning, intent the face of the contrary apparent act.. this what Luder rule must be the interpretation that on the admission that is-the- provision, COUET. SUENEME IN'THE v. Ostwaut. “ he shall issue of or the 'father, paternity, finding not exceed- or 'be fined by judge fund of the to the school dollars, which ten go law.” ?” is an made by “A crime act punishable Law, Law, Cr. Sec. P. of Sec. 'Wharton’s 162; Broom’s “ is crime,” “A any wrong and note. says Bishop, at to government deems injurious public in its a proceeding punishes through judicial large Sec. 32. Law, Or. Bishop own name.” Carolina death pen- North the Constitution of Under all other capital can be inflicted in cases only, four alty The Legislature empow- forbidden. punishment being all other ered to prescribe punishment either a fine or or without offences imprisonment (with or hard both. labor) public stat an is forbidden When act by affecting it is indictable at common-
ute, says doing Bishop, 2 Arch. C. law.” Parker, C., 650; L L., , Cr. 54; 2 Hawks. P. 2; Ch. Bishop or act If crime is punish wrong in the name law in a conducted able by proceeding can no about it would seem that there State, controversy name of conducted fact that proceeding, State, became regulation, order out carry police when made law fine crime punishable by appropri fund, all to the school as are other fines ated imposed for crime. to have been conviction seems neverbefore creates when doubted that the criminal offence it certain act shall be ever prescribes punishable n either fine or forbids imprisonment, generally, courts either fine empowers impose implication n as is case the law where imprisonment, simply n declares a misdemeanor, that a certain act shall be deemed how without providing punished. *5 TERM,
N. FEBRUARY 1213: O.] Ostwaut. Hatch, C., 1003 ; Hawkins, 494; 77 Law, 1 Cr. Sec. 940. Bishop “ A fine CoKE, Lord 1 Coke on Lit., (says 126b) signi- fieth a for an oifence or pecuniary punishment contempt committed, Am. court.” imposed by & Enc., 991. If a fine either for a Eng. punishment oifence or no there contempt, being pretense a bastard ais it must be a crim- begetting contempt, inal offence.
The Scotch definition of a criminal offence, which was founded identical with the common-law, upon pi-mciples declared act made either law, punishable by by corpo- ral mulct, to be crime. punishment pecuniary McKenzie Cr. Law, 3.
The Act of 1791, 14, 10, Potter’s Sec. Revisal, p. all enactments, coutain the same subsequent substantially as is still contained in Section 32 of The Code, that the father, of the issue of rrpon finding paternity him, should stand with the maintenance charged, child, order, bond,. as the court and shall give may 1814, &e.” 870; Ch. Manual, ; Act of Haywood’s p. 12, 2; Stat., Potter’s 304 1 Ch. Revisal, ; Revised p. 4; Revised Code, 12, Ch. See. Battle’s Ch. 4; Rev., 9, Sec. 4.
The Act 35 of The is embodied Section Code, is direct conflict with the quoted language the court shall make an providing allowance to the woman, not the sum of fifty exceeding dollars, tobe such installments paid judge jus- tice shall fit, bond, see instead of &c,” give as to amount as well as standing chargeable date as the court determine. payment, Clearly might was, the effect of the The- of the Act of until passage Code in 1883, took effect of the old repeal portion *6 THE COURT.
1214 SUPREME v.
State Ostwalt.. Either in Battle’s Revisal. as compiled Revised Code an unlimited allowance or to make had the (cid:127)court power the commissioners It is manifest limited to $50. one inad- and the forward Legislature inadvertently brought con- in The Code enacted provisions apparently vertently Code, of The the later provision In the same way flicting. a criminal offence, in deprives 35,) making {Section of not from verdict State of the guilty. right appeal “ and law and recognized The practice, pre-existing Court said the numerous enforced adjudications,” Powell, had C., v. settled 86 N. principle State a tri- any with offence before charged when party and has been tried bunal of acquit- competent jurisdiction and no conclusive, ted, the result is final appeal committed to correct errors allowed the State maintained since and this has been court, uniformly v. Constitution, Jones, before. new State adoption of Hawks., v. 462; v. 1 State 251; 1 State Taylor, Murphy, ; Martin, Credle, C., v. 506 63 N. 3 State Hawks., 381; West, C., v. 71 N. C., ; v. 66 N. 646 State State Philips, C., v. N. 193. ; 263 State Armstrong, court below State to from erroneous rulings for the defendant upon exists where only given bill, verdict, or on demurrer to the special Lane, v. State quash, or in motion to arrest judgment. 541 v. C., C., ; v. 82 N. State N. 547; State Swepson, Justice Chief Moore, The reason 724.” given Connor, Dev. Pe arson Daniel State Judge Pate, 244, for declar Busbee, Bat., 370, & a criminal to make had no power trial, indictment offence and for its without provide was Legisla ceased when given presentment, power other Art. IY. Sec. 14) provide ture (Constitution, A misdemeanors.” means of trial for justice’s petty FE BEN ANY TEEM, O.] c. Ostwaut. misdemeanors, bow and the Attor- jurisdiction try General conceded that no ney frankly part lies a court of competent finding that a defendant When jurisdiction guilty. Constitution so altered as to substitution permit *7 the of as a fact, the trier of the for the justice jury, as intimated Chief Justice in v. Powell, by Smith the- was in no In supra, principle way changed. speaking of the constitutional that no be provision person limb, twice in of L., life or C. Sec. put (1 jeopardy Bishop “We have 997) seen so much says: elsewhere while aof statute as is the accused is against strictly, interpreted in the his are favor extended and the same parts liberally, a distinction to written constitution. Therefore applies the constitutional now under consideration should be construed as cases within liberally its reason covering words, while not within its on which principle, plainly, should, the courts as we have do, seen hold generally they misdemeanors, the same as to treason and applicable L.,C. A felony.” stat- Again Bishop says, (1 1026,) ute, which of device an the State under- takes to authorize the retrial of one on valid acquitted indictment, is void.” then, Act
Granting, created a criminal oifence, re-enactment the old in Section provision, 32 of Code, that finding, the' affiant, woman, defendant to the may appeal next term of &c.,” void, would if superior stated of courts principle properly by Bishop. duty however, as far as can be done without consti- violating tutional to reconcile conflicts two principle, apparent statutes, and construe them so as to effect to both. give Winslow v. at Morton, this Term. It has been held in State Wynne, v. the criminal offence is within supra, COURT. THE SUPREME v.
Statl for twelve months the exclusive justice jurisdiction true, and, if that ; from the time the child begotten statute had provid- here jurisdiction, While tanto void. would be pro a house be committed to defendant on conviction may when committed to correction or to yet prison prison, further action the State or into without custody, prayed will he discharged taking complainant, and State v. insolvent oath. Burton required In Wynne, Myers Stafford, supra; be an cases mother been held to these right conviction, which was com- incidental out of one growing a nuisance abated certain to have pared instances, have it is see how we could gone difficult further, face of the prohibition placing second twice person jeopardy subject — *8 this has trial. The utmost that Court since length gone, it called to the Act of was when was attention was conviction, conceded after after (not acquittal,) creditor, and, mother rights acquired judgment in notice, she due could where showed diligence giving insist insolv- contesting discharge defendant, on the ent might appeal part apt can, This be time to vindicate her right. privilege given the constitutional her under the statute without infringing But the unfortunate the defendant. rights bringing forward of old not annul statute could rights acquired in a statute, under the later embodied section subsequent of the Act of of The Oode. After passage to the of this was called fact before attention Court act, that that had been several cases fine imposed Court, v. Burton, this were cited in State came before which and have considered been every opinion subsequent would has discussed. seem which been subject TEEM, FEBEUAEY C.] ». Ostwalt. needless to thresh over such old straw for time. the fourth The fact fine creates crimi- imposition nal offence is none less true because the over- court looked for time the fact that had been done.
For the reasons below given, judgment is reversed, and the is entitled to be discharged.
Eeversed. J. to and State v. (dissenting): Up including Clark, Edwards, C., 511, 110 N. which the authorities (in are.col the decisions this Court were lected,) uniform that pro were civil not criminal. In State ceedings Burton, C., 655, intimated, 113 N. it was decided, but not construed they actions. This might has been followed by Myers C., 234, Stafford, n held, p. 689,) Court, divided (dissenting opinion, action, and two decisions to that made, been effect have since but the constantly increasing and difficulties from this construction, perplexity arising act, and which threaten warn virtually us nullify ancient to return to the land-marks and show the peril from them. departing time,
For the first effect of the new has departure us face to face with this brought question. Legisla- ture that from (Code, provided 32) on the trial “the-affiant, before the finding justice, woman or the defendant term of next may appeal *9 of the the where the trial is to be superior Now, had novo.” we de are asked to this nullify express of the power the provision law-making upon ground a action, no lies from the being judg- ment of the if in of favor The defendant. magistrate to laws enact cannot be abridged power denied when their action is to except clearly contrary
118—77 THE SUPREME COURT.
Statb Rut it is of Constitution. contended tbe some provision dollars, a fine often Oode, Section 35,'authorizing (cid:127)that The and ergo a criminal into turns the action proceeding, affiant or the woman Section giving provision, express and no effect. This is of appeal, abrogated be so. cannot 32 and 35 are
1. If incompatible, provision Sections be held should $10 penalty, of Section authorizing of than the Section nullified, rather express provisions the whole nature of the latter is to change To disregard is statutes, In stress construing particular proceeding. The to be remedied. mischief the mischief laid upon a to make the of here not bastard begetting remedied is and to collect of offence a criminal petty penalty child is not, for there the crimi- Clearly already therefor. $10 far and of fornication adultery, admitting offence of nal no and even when child is penalty begotten. heavier offence, if the woman would Besides, and which abetter, as an aider be liable co-principal, the statute. not object contemplated cleai’ly' for statute, through provide through, child and its prevent charge maintenance being criminal, civil, is a not proceed- the county, the evident of the whole chapter This is purport ing. and, has been so until recognized by long bastardy, line Section 32 unbroken decisions. recently, very defendant, if directs judgment, child,” a civil the maintenance judgment. to impose incidental power given by If the with the entire balance of conflicts chap- $10 penalty of this evident ter, and the purpose long-established legis- should be held then that nullity, lation, and evident intent entire other provisions chapter. *10 FEBRUARY TERM, 1896. 0.] Ostwaut.
2. But the addition of the cannot penalty $10 con be held to this sistently change which is essen proceeding, civil in its nature, tially been so held always till very into a criminal action. In recently, sim exactly ilar manner is that the board of provided commissioners are liable in certain cases all for losses sus tained taxes, and also aof mis guilty the.collection demeanor, and to a liable fine of. less not than Code, $500. The Oode, Again, provides sheriff, failure to make returns of the elec proper tion officers, for State is liable to forfeit $2,000 to one same, who shall for the sue and shall be aof mis guilty demeanor by punishable imprisonment penitentiary. In manner, a the same of $2,500 is allowed penalty the sheriff for failure to settle taxes, his and is added to amount judgment, (McKee Davenport, N. C., but it was held 500,) made such pro a criminal action. are There numerous like ceeding cases. Can it be contended because in these cases a fine or is action is turned into a imprisonment civil imposed, criminal so has the benefit proceeding, of a number of the benefit of superior reason challenges, and, doubt, able if he a verdict errors of the by gets judge below, in the court there no review ? In by woman, given proceedings institute obtain for the mainte proceedings child defendant, nance and that he in a pay sum fixed the court for that and if the purpose; penalty ten dollars is as in proceeding, simply, the above instances, matter which cannot separate change the woman’s civil into remedy proceeding would the man from review if protect the civil If is found his favor. provisions Sections [issue latter, are incompatible, inei- being merely J32 COURT. THE SUPREME *11 v.
State should, dental, former, should give way. They and, if Section so, be construed however, rather together, and Section 35 is 32 the woman a civil gives proceeding, in of The Code, so sections many proceeding, (as are for the of which two sections above cited,) petty pen- limited to $10. alty were reiterated doctrine however,
3. the recent If, the whole nature the incidental penalty changes $10 follow that express pro it does not still proceeding, statute, the woman right appeal, vision of giving that no one shall unconstitutional. tried twice in means that no one shall be jeopardy simply in another action for a criminal offence after verdict in a either of conviction or trial for the same acquittal not forbid a of the same case offence. It does review by which is a continuation merely prolongation appeal, on of the same. true except special appeals, cases, limited are not and in certain other given verdicts virtue of But that restriction simply by to the State. State and not constitutional provision. the statute by on that 162, is C., v. 8 N. Hawks.,), expressly Taylor, (1 put in a similar ruling and is cited as authority gi-onnd, v. from Credle, C., 63 N. Accordingly, appeals in this were verdict not guilty recognized general C., State, N. (State Haddock,) (348); McLelland, statute, till restricted by (569), if a criminal Acts Ch. 895. But even this be pro “woman give has chosen to ceeding, ” and the affiant and in so doing right appeal, acted within the limits of its con department legislative That an can be authorized stitutional authoruy. appeal dis behalf of the State from a statute on judgment verdict, or on a motion special charging prisoner in or from verdict arrest of pro- judgment, quash, FEBRUARY TEEM, 1896. O.] Thomas. cured fraud, is conclusive that the cases State can from a verdict favor of the defendant are to be determined the statute law. If this be a criminal action, The Code, by giv- the affiant or the woman the has sim- appeal, added this ply instances which the proceeding State can defend- judgment discharging ant. The matter lies with the entirely acting people their representatives through Legislature. It is not *12 will instances, increase likely they number of law, already which the can existing by in a criminal action a.judgment discharging defendant, but exists. The Constitution forbids power a defendant be tried same offence in another action. The statute allows-a defendant for another trial apply in the same action, the State do the same may in certain instances. is in the specified legislative to increase or diminish at will the instances in which power - the State have the matter re-examined may upon appeal. J. : I MONTGOMERY, concur in the dissenting opinion.-
STATE v. E. A. THOMAS. Town Powers— Delegation Legislative Ordinances —
The Oode, Section 3799. Oode, empower pass 1. The does not a town to forbidding liquor ordinance occupy one who sells his own premises between certain hours. legislative authority may delegated 2. The extent to which Assembly municipal General authorities discussed.