State v. . Mallett

The defendants were convicted, and from the judgment (720) rendered appealed to the Superior Court, upon exceptions taken and noted during the trial.

The appeal came on to be heard by Hoke, J., at June Term, 1899, of the Superior Court of EDGECOMBE County, who rendered the following judgment:

This cause coming on to be heard before Hoke, Judge Superior Court, holding said term, on appeal from a verdict and judgment had against them in criminal court of said county, the court is of opinion that there was substantial error committed on trial of cause against defendants therein, for that, among other reasons, the facts developed on examination (of) defendants in proceedings supplemental to execution were, over their objections, used to effect their conviction. Both directly in evidence has Dr. Baker and Mr. Henry Gilliam, and indirectly by placing before this jury the evidence of these defendants, brought out by cross-examination before S. S. Nash, referee, in which examination defendants were asked concerning some matters developed in said supplementary proceedings. It is true the case on appeal states that the judge held, and so declared, that statements made by defendants in said supplementary proceedings were not competent evidence against defendants on this trial, but it is perfectly patent on inspection of the evidence set out, that the facts brought out on examination of defendants in said supplementary proceedings were necessarily used to develop their evidence before Nash, referee, and both in this way and in other particulars directly was this examination in supplemental proceedings used to effect their conviction, contrary to statute.

The court is also of opinion that judge erred in not leaving to jury question whether the facts constituting crime charged were discovered within two years before action brought, this being a misdemeanor (721) and barred unless accruing or facts discovered within said two years.

It is therefore adjudged that defendants are entitled to a new trial, and it is ordered that this opinion and judgment be certified to criminal court to next term, that new trial may be had pursuant to this judgment.

The State excepts, and takes an appeal. Notice waived.

W. A. HOKE, Judge Presiding.

There were other exceptions, in the case on appeal to the Superior Court by the defendants, which were not passed on by Judge Hoke, but which are noted in the opinion. This is an indictment for "conspiracy to cheat and defraud," and an appeal therein to this Court by the State from a judgment of the Superior Court, overruling the judgment of the Circuit Criminal Court, held in Edgecombe County. In State v. Davidson, 124 N.C. 839, it was pointed out that an appeal should lie in such cases at the instance of the State, and attention was called to the inadvertence of the Legislature (which alone has the power to prescribe the instances in which the State may appeal) in not amending sec. 1237, so as to embrace appeals by the State in cases going to the Superior Court from the Western Criminal Circuit. This inadvertence did not occur in the act (Laws 1899, ch. 471) creating the Eastern District Court, section 6 whereof expressly provides for such appeals. Section 23 of said act transferred to the new Eastern District Criminal Court all causes pending in the First Criminal Circuit Court.

The judgment of the Superior Court overruled the criminal (722) court on two grounds: First. Because facts developed on the examination of the defendants in supplementary proceedings were used to affect their conviction, contrary to the provisions of The Code, sections 488 (5), which provides that the answers of a defendant in supplementary proceedings "shall not be used as evidence against him in an criminal proceeding or prosecution." Second. That the judge of the circuit court, having held that this offense was a misdemeanor, which by section 1177 of The Code was barred only by the lapse of two years from its discovery, erred in not submitting to the jury the question whether the facts constituting the crime were discovered within two years before action begun.

As to the first point, a careful inspection of the record and case on appeal, sent up from the criminal court to the Superior Court, shows that the judge of the criminal court in fact carefully excluded from the jury all evidence of the examination of the defendants in supplementary proceeding, and "all testimony based on information received from the examination of the defendants in such proceedings, and only allowed such as was had by the witness before the institution of the supplementary proceedings," and the same care to exclude such testimony was shown by him throughout the trial. There were proceedings, subsequent to the supplementary proceedings, and entirely independent of them, and for a different purpose, before S. S. Nash, referee, and T. H. Battle, referee, at which the defendants offered themselves as voluntary witnesses, and at which it is possible and probable they may have made statements similar to those they had made before the clerk in supplementary proceedings, but such statements were not privileged, and were competent to be given in evidence against them (State v. Hawkins,115 N.C. 712), and indeed, the defendants did not (723) except as to them.

As to the second point: The judge of the criminal court rested his ruling upon the ground that the offense, though a misdemeanor, was one committed by deceit, and as the evidence was uncontradicted that the discovery thereof was within two years before the beginning of the prosecution, the offense was not barred. In that view of the case, although the evidence was uncontradicted, the matter, in a criminal action, should have been left to the jury (State v. Riley, 113 N.C. 648), with an instruction that, if the jury believed the uncontradicted evidence that the offense had been discovered within two years before prosecution begun, the statute of limitation was not a bar. His Honor, however, correctly held as a matter of law that the prosecution was not barred by the lapse of time, and his having given a wrong reason therefor will not vitiate the ruling.

Up to the act of 1891, chapter 205, in this State, we followed the somewhat arbitrary common-law rule as to what crimes were felonies, and what were misdemeanors, and under that conspiracy, and even such grave crimes as perjury and forgery, were misdemeanors. By the Act of 1891, North Carolina adopted the rule, now almost universally prevalent, by which the nature of the punishment determines the classification of offenses, those which may be punished capitally or by imprisonment in the penitentiary are felonies (as to which there is no statute of limitations), and all others are misdemeanors, as to which prosecutions in this State are barred by two years.

The Code, section 1097, provided that misdemeanors created by statute, where no specific punishment was prescribed, should be punished as at common law; and further enacted that as to misdemeanors that were infamous, or done in secrecy and malice, or with deceit (724) and intent to defraud, the offender might be punished by imprisonment in the county jail or penitentiary. This, by virtue of the subsequent act of 1891, chapter 206, made the classes of misdemeanors thus subjected to punishment in the penitentiary, felonies. The offense charged here, and of which the defendants have been convicted, was one done "with deceit and intent to defraud." It is the very essence and substance of it. The Code, section 1097, having given the courts power to punish it with imprisonment in the penitentiary, the act of 1891 aforesaid, makes it a felony, and the statute of limitations is not a bar. The indictment properly charges the offense to have been committed "feloniously." State v.Purdie, 67 N.C. 25; State v. Bunting, 119 N.C. 1200.

The judgment of the Superior Court must be reversed, and, as nothing further remains to be done in that court, this judgment will be certified by it to the Eastern District Criminal Court in Edgecombe County, that the sentence imposed by that court may be carried into execution.

Reversed.