NORTH CAROLINA, JUNE TERM, 1876. State v Johnson. 667 PEARSON, C. J. Since the establishment of the penitentiary offenses against the public are divided into three classes 1. Offenses that are punished by hanging. 2. Offenses that are punished by confinement in the penitentiary. 3. Offenses that are punished by fine or imprisonment in the county jail, or both. If on trial for an offense of the first class the judge directs a mistrial, he is required to find the facts, and his action is the subject of review in this court, a practice based on the sacred principle of the common law-no man shall be twice put in jeopardy of life or limb. The word "limb" having reference to the barbarous punishment, which has now become obsolete, of striking off the hand. Coke Litt. 227; 3 Inst. 110. On a trial for an offense of the other two classes, the discretion of the presiding judge is not the subject of review, and, as in trials of civil actions, he assumes the responsibility of making a mistrial whenever he believes it proper to do so in furtherance of justice. State v. Weaver, 13 Ired. 203; Brady v. Beason, 6 id. 425. In State v. Williams, 9 Ired. 140, it is said: "The jury should be satisfied that the prisoner was guilty in one of the modes well charged; and if so, it was manifestly of no consequence whether the conviction was on any one or all of these counts, since the offenses were of the same grade and the punishment the same. The instruction might relieve the jury of some trouble in their investigation, but could work no prejudice to the prisoner. It is clear our case does not come within that principle, for the offenses charged in the two counts are not of the same grade, and the punishment is not the same; so, upon a general verdict, "the record" does not enable the court to know upon which count, in other words, for which offense, the prisoner should be sentenced, and no judgment can be given without inconsistency and error apparent upon the face of the record. By the act of 1868 “stealing a horse" is made both as to the principal and the accessor before the fact, subject to much severer punishment than ordinary larcenies (see Bat. Rev., chap. 32, § 17), while the offense of receiving a horse knowing it to have been stolen is left as before. The judge in passing sentence would feel it to be his duty, in order to observe the grade of punishment, to be more severe in punishing "horse stealing" than in receiving a stolen horse; but the record does not inform him of which one of these two distinct offenses the prisoner is convicted. During the State v. Johnson. war actual horse stealing grew into alarming proportions. This crime was "a survival of the war," and the act of 1868 was passed to remedy the evil by increasing the punishment. The evil was so great in the western part of the State that a bill was offered in the General Assembly to make "horse stealing" a capital crime. It may admit of question whether, construing the act in reference to the evil intended to be remedied; it can be made to embrace constructive horse stealing, that is, obtaining a horse with the consent of the owner by means of a forged order, or other fraudulent contrivance, as distinguished from actual horse stealing, that is, taking and carrying away a horse without the consent of the owner. However this may be, the offense certainly comes within the words and the meaning of the act (Bat. Rev., chap. 32, § 66), making it a misdemeanor to obtain possession of property by means of any forged or counterfeit paper, etc, with intent to defraud the owner, etc. This embraces a horse as well as any other chattel. There is an apparent incongruity in making the same act amount to "horse stealing" under the highly penal act of 1868, or to a misdemeanor, at the discretion of the solicitor who draws the bill. This may account for the reluctance of two juries to convict for the crime of" horse stealing." This suggestion is made for the consideration of the solicitor, in case he shall consider it to be his duty to prosecute the matter any further after the arrest of judgment. In State v. Bailey, 73 N. C. 70, where there was a general verdict upon two counts, it is assumed in the opinion that one of the counts was bad, and the question is not discussed. In State v. Wise, 66 N. C. 120, it did not appear by the record proper, to wit: the bill of indictment, plea, issue and verdict, whether the prisoner was convicted under the act of 1869, which punishes the crime of arson by imprisonment in the penitentiary, or under the act of 1871, which punishes the crime by hanging. For this error the judgment is reversed, and the court takes no notice of the fact set out in "the statement of the case," that the crime was committed in August, 1871, after the act of 1871 had gone into effect, on the ground that "the court must be informed judicially, by the record, under which of these two statutes the prisoner is convicted, before it can proceed to judgment?" Error apparent on the face of the record cannot be cured by a statement State v. Parker. of the judge. So, in our case, the error apparent on the face of the record is not cured, because his honor sets out the fact that "on the trial no evidence was offered bearing upon the second count." Upon motion in arrest of judgment, as upon demurrers and writs of error, the court is confined to what is apparent on the face of the record. This is familiar learning, which applies both to the civil and criminal side of the docket. A statement of the case from the judge's note is only relevant to motions for a venire de novo and the like. There is error. Judgment reversed. This opinion will be certified, to the end that proceedings may be had agreeable to law. PER CURIAM. Judgment reversed. A constable arrested, without warrant, a person who was intoxicated, and imprisoned him in the "lock-up" until he became sober, when he discharged him without taking him before a magistrate. was guilty of a criminal assault and battery.* NDICTMENT for an assault and battery. IND Held, that the constable On the trial below the jury returned the following special verdict, to wit: (1) That the defendant did arrest the prosecutor, Robert Starkey, and against his consent put him in the "lock-up," at Marlboro', and released him as soon as he became sober. (2) That the defendant was town constable for the village of Marlboro', and arrested and imprisoned Robert Starkey as he thought in discharge of his official duty, as he so declared at the time, though he had no kind of process upon which to make the arrest. (3) That Starkey at the time when arrested and imprisoned was intoxicated on or near the public streets of Marlboro', in full view of the citizens thereof, though at the time he was saying nothing and using no profane or vulgar language. *See, also, Brock v. Stimson, 11 Am. Rep. 390; 108 Mass. 520. State v. Parker. (4) That the town of Marlboro' was incorporated, and the commissioners had passed the following ordinance, which was in force at the time of the alleged assault : "Any person found in a state of intoxication, or using vulgar or profane language, is declared a nuisance, and shall incur a penalty not to exceed ten dollars for each offense. Upon this special verdict his honor adjudged the defendant not guilty, and discharged him. From this judgment the solicitor for the State appealed. Attorney-General Hargrove, for the State. Defendant had no counsel in this court. BYNUM, J. Admitting that the ordinance in question is a valid one, it nowhere confers, and it could not constitutionally confer upon a constable, a ministerial officer, the power to arrest and imprison for a penalty incurred or for any other violation of law, except it may be for safe custody. Men may not be arrested, imprisoned and released upon the judgment or at the discretion of a constable or any one else. If the alleged offense be criminal in its character and committed in the presence of the officer, he may arrest and take the offender before a magistrate for trial. If the offense is penal only, and not a misdemeanor, the penalty can be recovered by action only. Commissioners of Washington v. Frank, 1 Jones, 436; Bat. Rev., ch. 111, § 20. If the offense be a misdemeanor, then it must be tried as other misdemeanors. Here the prosecutor was not sued for the penalty of ten dollars imposed by the ordinance, nor was he arrested and taken before a magistrate for trial for a criminal offense; but the constable arrested and imprisoned him, not for safe-keeping until he could be tried before a competent tribunal, but he imprisoned him until he became sober, according to his judgment, and then released him. The constable thus constituted himself the judge, jury and executioner. This is the best description of despotism. It is unnecessary to decide whether the ordinance, from its generality and vagueness, is not inoperative and void. Upon the special verdict, the defendant is, in law, guilty. There is error. This will be certified, to the end that the court below may proceed to judgment. Judgment reversed. ▲ statute provided that all dividends declared by any corporation, which should not be claimed within five years, by persons entitled thereto, should be devoted to a public use. Held unconstitutional. A CTION for money. The plaintiffs alleged that they were entitled to all the dividends declared by any corporation chartered under the laws of this State, which have not been recovered or claimed by the parties entitled thereto, for five years after said dividends were declared, by virtue of the provisions of chapter 236, Laws 1874-25; that the defendant company had, at divers times, declared dividends to its stockholders, which dividends have remained unpaid for more than five years, for the reason that they have not been received or claimed by the parties entitled thereto; and demanded judgment for an account of the dividends declared and unclaimed as aforesaid, to the end that the amount ascertained might be paid to the plaintiffs. The defendant demurred to the complaint and assigned as cause. 1. That according to the true intent and meaning of Art. IX, § 6, of the Constitution, a cause of action may be given for dividends or distributive shares of the estates of deceased persons, but not against the defendant. 2. That the act of assembly referred to in the complaint is unconstitutional and inoperative, so far as it purports to give to plaintiffs a right to claim dividends declared to stockholders. 3. That the defendant company has the right to declare dividends, and the stockholders to receive the same when they see fit, and it is beyond the power of the legislature to invade this private right by an enactment. His honor sustained the demurrer and dismissed the action. Judgment in favor of defendant for costs. Appeal by plaintiffs. Battle & Mordecai, for plaintiffs. Dillard & Gilmer, for defendant. |