State v. . Norwood , 84 N.C. 794 ( 1881 )

Ashe, J.

There are two points made by the record, first, the want of notice, and secondly, that the court below committed an error in its construction of the act of 1879, and according to the statement of the case as made by His Honor, he had no power to make the order in question.

As to the question of notice, we concur with the judge that there was sufficient evidence of notice to warrant the order. It appears that at the preceding term of the court, the defendant's counsel gave notice in open court, when the case of the State v. Norwood was called and continued, the witnesses being present and Annie Hunter being one of them, that at the next term (June term, 1880.) a motion would he made to mark her and others as prosecutors in the case. The clerk of the court testified that shortly before said June term, he had seen a notice, said to be lost, issued by the counsel of the defendant, Norwood, to the appellant and others, on the back of which were the endorsements, “ Received,” “ Served,” but he could not state by whom the return was made, nor whether it was served upon the parties or only upon a portion of them. The return purported to be signed, “ J. J. Nowell, sheriff,” by one of his deputies, but he could not recollect or know in whose handwriting, except it was not in sheriff Nowell’s. When the motion was argued, it does not appear whether she was present at the time or not, but she was present in court during the day on which the motion was argued, and one of the counsel for the prosecution, on that day, announced that all the parties were present. And the appellant was represented by counsel.

We are of opinion that the fact of the notice of the motion having been announced in open court, at the time when Norwood’s case was called and continued, (in which she was a witness) that a motion would be made at the next term to mark her as prosecutrix, with the testimony of the clerk, and with the further fact, that on the day of the argument of the motion it was publicly announced that all the parties were present, and that she was then and there represented by counsel, was sufficient evidence that the notice had been given to warrant the judge in making the order. The act of 1879 does not require the notice to be in writing. The object of the notice is to give the witness an opportunity to show cause. On the argument of the motion, counsel appeared in her behalf, and we must presume, represented her with her knowledge and consent. She then has had, what it was the object of the legislature to give her by requiring notice to be given, her “ day in court.”

As to the other point, that His Honor committed an error in his construction of the act of 1879, we think 'the excep tion equally untenable. The act of 1875, ch. 247, provides that in certain cases the costs of the prosecutor’s and the defendant’s witnesses, “ shall he paid by the prosecutor, if any be marked on the bill, whenever the judge or justice of the peace shall certify that there was not reasonable ground for the prosecution and that the public interest did not require it.” But this act was followed by the act of 1879, ch. 49, which, not purporting to be an amendment of the act of 1875, provides that the costs in like cases as in the former act, “ shall be paid by -the prosecutor, whether marked on the bill or not, whenever the judge or justice shall be of opinion that there was not reasonable ground for the prosecution or that it was not required by the public interest. The counsel for the appellant insisted in this court that the substitution of the word “ or” for “and ” in the last act, was an act of inadvertence, that the legislature never intended to make the change, and that as the copulative conjunction was used in the act of 1S75, the court should construe “or” tornean “and”; and if that was the proper construction, then there was error in the order of the judge in having the appellant marked as prosecutrix and taxing her with the costs, for he had based his order upon the opinion only, that the prosecution “ was not required by the public interest,” when he should have founded it upon the opinion “ that there -was not reasonable ground for the prosecution and that it was not required by the public interest.” We cannot concur with the learned counsel in this view of the case. It was evidently the intention of the legislature by the act of 1879 to discourage frivolous and malicious prosecutions. by enlarging the power of the courts over the question of costs in criminal actions.

Several changes were made in the act of 1879 from the act of 1875, besides that referred to. By the former, the courts had no power to mark anyone as prosecutor without his consent; in the latter, they have, upon notice. By the former, the court was required to certify that there was not reasonable ground, &c.; in the latter, no such certificate is required, but the court must simply entertain and express the opinion that there is no reasonable ground, &c.

To construe "or” to mean “and” in this case, would be a reflection upon the philological intelligence of the legislature, and would be an act of disrespect of which this court is incapable. We must therefore take it that they meant what they said, and whatever opinions we as individuals may entertain as to the wisdom or policy of the change, we must administer the law as we find it written.

There is no error. Let this be certified to the superior court of Wake that further proceedings may he-had according to this opinion and the law.

Per Curiam. No error.