State v. . Newell , 172 N.C. 933 ( 1916 )

Upon the foregoing record and the facts appearing therein, we are of opinion that the defendant has been properly convicted and sentenced, and his exceptions entered to the validity of the trial should be overruled. Chapter 122, Laws 1915, entitled "An act to provide for the reclamation and training of juvenile delinquents, youthful violators of law, and the probation system," is a statute applying to all children in the State under 18 years of age who come within the descriptive terms of the law as set forth in subsectionsa and b of section 1, and was passed as an administrative police regulation in the specified instances when the well-being of the child and the interest of the public require that it should for the time be withdrawn from an environment that threatens, and cared for and (937) trained and controlled with a view of making it a law-abiding and useful citizen. To this extent, the validity of such legislation is fully upheld with us in the case of In re Richard Watson, 157 N.C. 340, a cause involving the construction of the act establishing the Stonewall Jackson Training School, and the significance and effect of an order making present disposition of the child under the administrative features of the law are there fully discussed by Associate Justice Allen. This, then, being a valid enactment under the principles and authorities set forth and approved in that well considered opinion, the question on the present appeal is chiefly on the proper interpretation of the present statute as affecting the rights of the defendant on the record and others in like case. In subsections a and b, section 1, of the statute, delinquent and dependent children are defined as follows:

"(a) A child shall be known as a juvenile delinquent when he violates any municipal or State law, or when, not being a violator, he is wayward, unruly, and misdirected, or when he is disobedient to parents and beyond their control, or whose conduct and environment seem to point to a criminal career.

"(b) A child shall be known as a dependent child when, for any reason, he is destitute or homeless or abandoned, and in such an evil environment that he is likely to develop into criminal practices unless he be removed therefrom and properly directed and trained."

It thus appears that in case of "delinquent" children they are described and classified as those who are violators of State or municipal law and those who are not, and, although jurisdiction in general terms is conferred on both Superior and recorders' courts, and "like courts in cities where recorders' courts have not been established," it is evidently contemplated and provided that in cases where a delinquent is to be dealt with as a violator of the criminal law, in a given case, and on that ground alone, such violation shall have been first established by some court having jurisdiction of the offense, and the orders disposing of the child under the statute may be justified and upheld as an incident of the conviction. As said by Justice Allen in the opinion referred to: "The Legislature has no unlimited and arbitrary power over minors in respect to detaining them in reformatories or otherwise, and, in view of this admitted principle, the necessity for a conviction in the proper court, in order to deal with a juvenile delinquent on the ground that he has committed a single criminal offense, will appear from a perusal of the general provisions of the statute, and is made clear, we think, by a subsequent clause of section 2: "That it shall be the duty of the court or courts, in their discretion, to suspend sentence, when the child is found guilty and place him on probation for a specified period, three, (938) six, or twelve months, or a longer period, as the court shall think best."

This, then, in our opinion, being the proper construction of the present law, on the facts established by the special verdict, in any aspect of them, defendant in this instance is guilty of the crime of larceny. S. v.Stroud, 95 N.C. 626; S. v. Gaston, 73 N.C. 93; and this being a felony, under our statute, punishable by imprisonment in the State's Prison, Revisal, 3506, the recorder's court of the city of Greensboro was without jurisdiction to hear and determine the case, and the sentence and orders made, as to disposition of the defendant, incident to such submission and entirely dependent thereon, are a nullity, and the Superior Court had full power to proceed with the cause and, on conviction, to impose its sentence in punishment of the offense. And the result would seem to be the same though the charge had been properly one for receiving stolen goods, unless the punishment has been changed from that provided in Revisal, sec. 3507, which we do not discover, the court having decided that where the power to punish by imprisonment in the State Prison remains, the calling of an offense a misdemeanor will not make it so or confer the right to deal with a case without a grand or petit jury, as required by the Constitution. Article I, secs. 12 and 13; S. v. Hyman, 164 N.C. 411. The position further urged that a new trial should be awarded because the court, having used defendant as a witness against his codefendant, declined to continue the case, that the defendant might have opportunity to apply for a pardon, is without merit. Even in the case to which we were referred by counsel, "TheWhiskey cases," 99 U.S. 594, the Court holds that the mere fact that a defendant has testified is not effective as a defense to an indictment. In delivering the opinion, Associate Justice Clifford states with approval the position as follows: "Other text-writers of the highest repute besides those previously mentioned affirm this rule that accomplices, though admitted as witnesses for the prosecution, are not of right entitled to a pardon; that they have only a right to a recommendation to Executive clemency, and they uphold that prisoners, under such circumstances, cannot plead such right in bar of an indictment against them nor avail themselves of it as a defense on their trial." The position prevails even when the accomplice has testified on assurance of immunity from the prosecuting officer, he, under the law, having no right to pardon offenses, either in this or any other manner. True, in this last event, the case holds that a trial should be stayed till a pardon could be applied for, but this is only by way of admonition to the lower Federal courts, and should not be regarded as controlling in this jurisdiction, where, under our Constitution, a pardon by the Executive is allowed only after a conviction (Inre Dick Williams, 149 N.C. 436), and further, it is the established and usual custom of the Executive Department not to consider (939) such application while such conviction is being in any way resisted by appeal or other wise. Under these circumstances a criminal prosecution in this State should be subject to the rule very generally obtaining, that an application for a continuance by a defendant is referred to the discretion of the trial judge. S. v. Sultan, 142 N.C. 569.

There is no error, and the judgment of the Superior Court must be affirmed.

No error.

Cited: S. v. Burnett, 179 N.C. 744 (d); S. v. Harwood, 206 N.C. 89 (3c);S. v. Surles, 230 N.C. 279 (3c).