State v. Rumfelt

85 S.E.2d 398 (1955) 241 N.C. 375

STATE
v.
Ray Young RUMFELT.

No. 438.

Supreme Court of North Carolina.

January 14, 1955.

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

Vaughan S. Winborne and Samuel Pretlow Winborne, Raleigh, for defendant, appellant.

PARKER, Justice.

The defendant assigns as error the refusal of the trial court to allow his motion for judgment of nonsuit made when the State rested its case. The defendant contends that G.S. § 20-162.1 prescribes that "any person convicted pursuant to this section shall be subject to a penalty of $1.00", and therefore does not set out a criminal act triable in the criminal courts of the State; but in specific words imposes a penalty to be recovered in a civil action.

The amended warrant upon which the defendant was tried and convicted by a jury in the Superior Court charges a violation of G.S. § 20-162. G.S. § 20-176(a) provides that "It shall be unlawful and constitute a misdemeanor for any person to violate" G.S. § 20-162; and (b) states "Unless another penalty is in this article or by the laws of this State provided, every person convicted of a misdemeanor for the violation of any provision of this article shall be punished by a fine of not more than one hundred dollars ($100.00) or by imprisonment in the county or municipal jail for not more than sixty days, or by both such fine and imprisonment: Provided, that upon conviction for the following offenses * * * violation of * * * 20-162 * * * the punishment therefor shall be a fine not to exceed fifty dollars ($50.00) and not less than ten dollars ($10.00), or imprisonment not to exceed thirty days for each offense."

In reversing a conviction in the Superior Court in State v. Scoggin, 236 N.C. 19, 72 S.E.2d 54, 58, this Court said in 1952: "* * * we should not, in the absence of a legislative rule of evidence to the contrary, consider mere ownership of a motor vehicle, parked in violation of a city ordinance, and no more, sufficient to sustain a criminal conviction * * *."

It seems apparent that as a result of the decision in the Scoggin case, and the language quoted above therefrom, the General Assembly at its 1953 Session enacted the statute which is now G.S. § 20-162.1 and which is captioned, "Prima facie rule of evidence for enforcement of parking regulations", to establish "a legislative rule of evidence" in respect to "cases concerned solely with violation of statutes or ordinances limiting, prohibiting or otherwise regulating the parking of automobiles or other vehicles upon public streets, highways, or other public places." A violation of G.S. § 20-162 presents the type of case to which the prima facie rule of evidence set forth in G.S. § 20-162.1 is applicable.

G.S. § 20-176 in plain and exact words declares that a violation of G.S. § 20-162 is a misdemeanor and prescribes the punishment, which is greater than that imposed in G.S. § 20-162.1. G.S. § 20-162.1 creates no criminal offense, but prescribes that when the prima facie rule of evidence therein set forth is relied upon by the State in a criminal prosecution, the punishment shall be a penalty of $1. There can be no doubt that this action is a criminal action prosecuted by the State to punish the defendant for a violation of its criminal law. When we consider the words "fine" and "penalty" as used in G.S. § 20-176, and the word "penalty" as used in G.S. § 20-162.1, it is clear that the General Assembly considered and used the word "penalty" in G.S. § 20-162.1 as equivalent to the word "fine", and imposed the payment of $1 for a violation of its criminal law. This $1 was exacted of the defendant who was found guilty by a jury of a misdemeanor.

The word "penalty" has many different shades of meaning. In Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 227, 36 L.Ed. 1123, it is said: "In the municipal law of England and America, the words ``penal' and ``penalty' have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws. United States v. Reisinger, 128 U.S. 398, 402, 9 S.Ct. 99 (32 L.Ed. 480, 481); United States v. Chouteau, 102 U.S. 603, 611 (26 L.Ed. 246, 249)." See also Weideman v. State, 55 Minn. 183, 56 N.W. 688; 23 Am. Jur., Forfeitures and Penalties, Sec. 27.

"The term ``penalty' in its broadest sense includes all punishment of whatever kind, and in the broad sense it is a generic term which includes fines as well as all other kinds of punishment." 36 C.J.S., Fines, page 781.

We said in State v. Addington, 143 N.C. 683, 57 S.E. 398, 399: "In ordinary legal phraseology, it is said the term ``fine' means a sum of money exacted of a person guilty of a misdemeanor, or a crime, the amount of which may be fixed by law or left in the discretion of the court, while a penalty is a sum of money exacted, by way of punishment for doing some act which is prohibited, or omitting to do something which is required to be done. (Citing authorities.)"

State v. Briggs, 203 N.C. 158, 165 S.E. 339, relied upon by the defendant is distinguishable. The defendant was tried in a criminal action for violation of a statute which read: "``That no other person than said weighers shall weigh cotton or peanuts sold in said town or township, under a penalty of ten dollars for each and every offence, said penalty to be paid by the buyer and applied to the school fund of said county upon connection (conviction) of the offender before any justice of the peace of said county.'" This Court held that that statute did not create a criminal act. In the instant case G.S. § 20-176 prescribes that a violation of G.S. § 20-162 is a misdemeanor.

State v. Snuggs, 85 N.C. 541, is the case of an indictment for illegally issuing a marriage license—the defendant being a Register of Deeds. The statute prescribed that a person who violated the statute "shall forfeit and pay $200 to any person who shall sue for the same." This Court rightly held that the statute created the offense, fixed the penalty, and prescribed the method of enforcement, and that the indictment charged no indictable offense. The Snuggs case is not in point. To like effect see State v. Loftin, 19 N.C. 31. See also State v. Southern R. Co., 145 N.C. 495, at page 540, 59 S.E. 570, 13 L.R.A., N.S., 966.

We said in Board of Education v. Town of Henderson, 126 N.C. 689, 36 S.E. 158, 159: "To our minds, there is a clear distinction between a ``fine' and ``penalty.' A ``fine' is the sentence pronounced by the court for a violation of the criminal law of the state, while a ``penalty' is the amount recovered—the penalty prescribed—for a violation of the statute law of the state or the ordinance of a town. This penalty is recovered in a civil action of debt." Commercial Finance Co. v. Holder, 235 N.C. 96, 68 S.E.2d 794 (counterclaim for recovery of penalty for alleged usury); and Smoke Mount Industries, Inc., v. Fisher, 224 N.C. 72, 29 S.E.2d 128 (counterclaim for overtime under Federal Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.) are types of civil actions to recover penalties. The judgment of the lower court that the defendant pay a penalty of $1 was a sentence pronounced by the court for the violation of a statute, which violation is specifically declared by the General Assembly to be a misdemeanor.

The trial court correctly denied the defendant's motion for judgment of nonsuit.

The defendant's only other assignment of error is that the trial court erred in taxing the defendant with the costs.

Art. IV, § 1, of the North Carolina Constitution, prescribes that "every action prosecuted by the people of the State as a party, against a person charged with a public offense for the punishment of the same, shall be termed a criminal action."

G.S. § 1-5 reads in part: "A criminal action is—1. An action prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof."

The defendant was convicted of a violation of G.S. § 20-162, which violation constituted a misdemeanor by virtue of G.S. § 20-176.

G.S. § 6-45 prescribes that "Every person convicted of an offense, or confessing himself guilty, or submitting to the court, shall pay the costs of prosecution."

This assignment of error is without merit.

The charge of the court is not in the Record, and is presumed to be free from error. State v. Harrison, 239 N.C. 659, 80 S.E.2d 481.

In the trial below we find

No error.