State v. . McNeill ( 1876 )

This indictment contains three counts: the first is for an assault with a deadly weapon, with intent to kill; the second, for an assault with a deadly weapon, with intent to injure; and the third is for a common assault and battery.

There was a general verdict of guilty, without the verdict specifying upon which count the finding was made. The question is, whether upon this verdict and for the offenses charged in the indictment, the court can sentence the defendant to imprisonment in the penitentiary. We think it cannot.

Sections 7 and 8, chapter 167, Laws 1868-'69, prescribing the punishment for the offenses set out in the first and second counts, are repealed by Laws 1870-'71, chap. 43, sec. 1, and by the second (16) section of the latter act it is enacted that "in all cases of assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court." So that now, all assaults, of whatever character, are put upon same footing, and are subjected to the same character of punishment. So it is not material to inquire whether the verdict should have been rendered upon any particular count. The question, then, is narrowed down to this: Do the terms "fine and imprisonment at the discretion of the court" confer the power to imprison in the penitentiary? We think not, clearly.

All punishments in this State are now prescribed and regulated by statute, or when not so prescribed, are punishable as misdemeanors at common law; unless the crimes are infamous or done in secrecy and malice, or done with deceit and intent to defraud; when they may be punished as prescribed in sec. 29, chap. 32, Bat. Rev. (see sec. 108), that is by imprisonment in the state prison or county jail. The assaults charged in the indictment, not being infamous crimes, or done in secrecy and malice or with deceit and intent to defraud, cannot be punished in the state prison, under section 108; and not having been punishable with whipping or other corporal punishment, prior to the adoption of the present Constitution, cannot be punished by imprisonment in the penitentiary under sec. 29, ch. 32 Battle's Revisal; and finally, the penitentiary, being a modern device, unknown to the common law, punishment by imprisonment in the penitentiary could not be imposed by the common law. The conclusion is, that misdemeanors, made punishable as at common law, or punishable by "fine or imprisonment, or both," which is our case, can be punished only by fine or imprisonment in the county jail, one or both. No other reasonable construction can (17) be put upon sec. 29, 108 and 111, chap. 32, Bat. Rev., collated and construed together.

In further illustration of this construction, it will be seen throughout chap. 32 on "Crimes and Punishments," that wherever imprisonment in the penitentiary is annexed as the punishment of the offense, the crime is either "infamous, or done in secrecy and malice, or done with deceit and intent to defraud." On the other hand, where the punishment prescribed "is fine or imprisonment," nowhere will it be found that the imprisonment is prescribed to be in the State prison or penitentiary. All offenses, therefore, which are misdemeanors at common law or made such by statute, where no punishment is specified, or prescribed to be as at common law, or by imprisonment, can be punished by imprisonment in the common jail only, unless the offenses are infamous, done in secrecy and malice, etc., as prescribed in secs. 29 and 108 as before cited. This rule covers our case.In re Schenck, 74 N.C. 607.

The exception taken to the admission of the previous declarations of the prosecutrix was not pressed in this court, and is not tenable. The witness was impeached in her cross-examination, as having made contradictory statements about the occurrence, and her previous declarations consistent with her evidence were admissible in corroboration.

PER CURIAM. Error.

Cited: S. v. Norwood, 93 N.C. 579; S. v. Manly, 95 N.C. 662.

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