State v. . Leeper , 146 N.C. 655 ( 1908 )

CONNOR, J., dissenting arguendo; WALKER, J., concurs in the dissenting opinion. The defendants, who are county commissioners of Gaston County, were indicted in the following bill:

The jurors for the State, upon their oaths, present: That John F. Leeper, J. W. Kendrick, O. G. Falls, A. R. Anders, J. C. Puett, and R. K. Davenport, commissioners of Gaston County, N.C. were duly elected commissioners of Gaston County at the general election held in the year 1906 for members of the General Assembly and other officers required by law to be elected at that time in Gaston County, N.C. that they were elected for two years from the first Monday of December, 1906, and took the oath required by law for county commissioners, and entered upon the discharge of their duties as commissioners of Gaston County, N.C. and now are citing and were at the time hereinafter mentioned acting as the board of county commissioners of Gaston County N.C.; that under the laws of North Carolina (Rev., 1318, subsec. 26) it is made the duty of the board of commissioners of Gaston County (naming them, as above) "to erect and repair the necessary county buildings and to raise by taxation the moneys therefor; that the county courthouse is a necessary county building for Gaston County, N.C.; that the present county courthouse for Gaston County, N.C. was built about sixty years ago, when Gaston County had a population of about 7,228; that Gaston County now has a population of about 30,000 or more; that the present courthouse is not large enough to hold the records of Gaston County, N.C.; that it is not large enough to accommodate the public officers of Gaston, who are required to keep their offices in said building; that it is not large enough for the suitors, jurors, and witnesses who attend the courts of Gaston County, as by law they are required to do; that it is a small, incommodious building, inadequate and unsuitable to the present needs of the county of Gaston, N.C. is not in good repair, and is in no sense a courthouse or (657) county building necessary to the present needs of the public; that John F. Leeper and the others named above, commissioners as aforesaid, on the first day of November, 1907, unlawfully and willfully did omit, neglect, and refuse to discharge the duty of their office, in that they unlawfully and willfully omitted, neglected, and refused "to erect and repair the necessary courthouse for Gaston County, N.C. and to raise by taxation the moneys therefor," contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. HERIOT CLARKSON, Solicitor.

On motion of the defendants, the indictment was quashed. Appeal by the State. This is an indictment against the county commissioners for neglect of duty. Rev., 3592, provides that if any officer "shall willfully omit, neglect, or refuse to discharge any of the duties of his office, for default whereof it is not elsewhere provided that he shall be indicted, he shall be guilty of a misdemeanor." And Revisal, sec. 3590, provides: "If any county commissioner shall neglect to perform any duty required of him by law as a member of the board, he shall be guilty of a misdemeanor," and also liable to a penalty. Rev., 1318, under the heading "Powers and Duties" (of county commissioners), places under subsection 26 thereof the words "to erect and repair the necessary county buildings, and to raise, by taxation, the moneys therefor."

This indictment alleges that the courthouse of Gaston County is insufficient, specifying the particulars wherein; also, that it is not in good repair, and that the defendants "unlawfully and willfully (658) did omit, neglect, and refuse to discharge the duty of their office, in that they unlawfully and willfully omitted, neglected, and refused ``to erect and repair the necessary courthouse for Gaston County, N.C. and to raise by taxation the moneys therefor.'" The indictment followed the words of the statute (Rev., 2592), and should not have been quashed. Rev., 3254; S. v. Harrison, 145 N.C. 417.

The statute made it, among other duties, the duty of the county commissioners to provide a sufficient courthouse and keep it in repair. It is their duty both to erect and keep in repair. They are cognate duties, and failure as to them can be charged in the same bill. The offense is "neglect of duty." The specifications are "failure to erect" and "failure to keep in repair." If either particular is proven, the offense is proven. It is like an allegation of an assault with a pistol and with a brickbat; proof of either sustains the charge; or like a charge of larceny of corn in the ear and of shelled corn, or of different articles of any kind, or other offenses alleged to have been committed in more than one way.

The offense charged being "neglect of duty" in not erecting and in not repairing, there is no duplicity in the bill in alleging both particulars. Indeed, the solicitor acted wisely in following the statute. If he had alleged neglect of duty in "not erecting" a courthouse, the defendants could have set up that they should have "repaired"; and, if he had charged neglect of duty in "failing to repair" the courthouse, the defense could have set up that they should have "erected" a courthouse.

To prevent this "hide and seek" — this travesty in investigating the charge of neglect of duty as to the courthouse — the solicitor charged the neglect of duty, in the words of the statute, both in failing to erect and to repair. If the State can prove that either was the duty of defendants, under the circumstances, and that they have failed to discharge such duty, it is entitled to a verdict. If it shall make a difference (659) in imposing sentence (if there is a conviction), the judge can ask the jury, or the defense can have the jury polled, as to whether they find the neglect of duty as to the courthouse was in failing to "erect" or to "repair," just as, in cases above put, he can ask the jury whether they find the assault was made with a pistol, or with a brickbat, or without weapon; or, when larceny of several articles is charged, as to which the jury find the theft proven.

Revisal, secs. 3254 and 3255, were passed to forbid refinements and technicalities which, without being any aid to the innocent, brought the administration of justice into disrepute. This purpose of the lawmaking department has been approved in strong and striking terms by Ruffin, C. J., in S. v. Moses, 13 N.C. 464, and by Ashe, J., in S. v. Parker, 81 N.C. 531, and in yet other cases by other judges, from some of whom extracts are given with approval in S. v. Barnes, 122 N.C. 1035, and many other cases, and they need not be again quoted. The recitals and charge in this bill are so explicit that the defendants could not pretend, and did not, that they did not know that they were charged with neglect of duty in failing to provide a sufficient courthouse for the county. Hence it was sufficiently charged. Revisal, sec. 3254.

Whether such "neglect of duty" (if shown at all) was in failing to repair or in failing to erect, was a matter to be shown in the proof and to be passed on by the jury, just as when different modes of assault and battery, or larceny of two or more articles, are charged.

If, however, failure "to erect" were one offense, and failure "to repair" were another, being cognate offenses, the remedy was not to quash, but to require the solicitor to elect at the close of the evidence. S. v. Williams, 117 N.C. 753; S. v. Allen, 107 N.C. 805; S. v. Parrish, (660) 104 N.C. 679; S. v. Morrison, 85 N.C. 561; S. v. Eason, 70 N.C. 88.

In S. v. Moses, 13 N.C. 464, Ruffin, C. J., speaking of the act of 1811 (now Revisal, sec. 3254), says, with his usual vigor and robust common sense: "This law was certainly designed to uphold the execution of public justice by freeing the courts from those fetters of form, technicality, andrefinement which do not concern the substance of the charge and the proof to support it. Many sages of the law had before called nice objections of this sort a disease of the law and a reproach to the bench, and lamented that they were bound down to strict and precise precedents. . . . We think the Legislature meant to disallow the whole of them, and only require thesubstance — that is, a direct averment of those facts and circumstances which constitute the crime to be set forth." In S. v. Smith,63 N.C. 234, the Court says: "The act of 1811 has the almost universal approval of the bench and bar. It needs no higher indorsement than that of the late Chief Justice Ruffin, in S. v. Moses (cited supra). . . . The act has received a very liberal construction, and its efficacy has reached and healed numerous defects in the substance as well as the form of indictments. . . . It is evident that the courts have looked with no favor on technical objections, and the Legislature has been moving in the same direction. The current is all one way, sweeping off by degrees ``formalities and refinements,' until, indeed, a plain, intelligible, and explicit charge is all that is now required." The above have often been cited and approved by this Court, and in other States which have similar statutes.

The defendants are explicitly charged with neglect of duty, and they well understood that the particulars were that they had not provided the county with a suitable courthouse, in that they had neither repaired the old one nor built a new one. They would have a complete defense by showing that they had done either, or if the State failed to show (661) that a better courthouse was necessary. The object of the indictment is to give information of the charge. The defendants do not deny that they had this information, which is the sole object of the indictment, but they earnestly contend that the preservation of our liberties require that it should have been conveyed in two separate counts in the indictment instead of in one. The burden of proof is on the State to prove its charge against the defendants. Instead of meeting the evidence, their attitude recalls the language of Fox, in the English Parliament: "You may pull down the pillars of the temple, and nothing stirs; but touch a single cobweb in Westminister Hall, and the angry spider rushes forth." The defendants object to having witnesses prove that they have neglected their public duty to furnish a proper courthouse, in that they have neither repaired the present one nor built a new one (though they fully understand the charge), because the charge is not made in two counts. If made in two counts, it would be equally as sound logic to move to quash, because they were contradictory.

In indictments for neglect of duty by a public officer, corrupt intent need not be shown. S. v. Hatch, 116 N.C. 1003, which has been often cited since with approval. It cannot be necessary to charge what need not be proven. It is sufficient to follow the words of the statute. S. v. George,93 N.C. 570; Brown, J., in S. v. Harrison, 145 N.C. 417. The particulars are fully averred, but if the defendants had desired further information, the statute provides that they could have a bill of particulars. Rev., 3244; S. v. Pickett, 118 N.C. 1233. If corrupt intent were charged and proven, the judgment would include removal from office as part of the punishment. Rev., 3592.

For such neglect of duty a mandamus does not lie. Ward v. Comrs.,ante., 534, in which it is said: "The duty of providing a sufficient and proper courthouse is to be discharged by the county commissioners, subject to indictment if there be a willful failure." The judgment quashing the indictment is (662)

Reversed.