Opinion
December Term, 1820.
In actions on penal statutes it is necessary in the declaration to name the statute, or recite its provisions, or refer to it in some manner as by the general terms, "contrary to the statute in such case made and provided," so as to give the party notice of the law, with the violation of which he is charged.
Held, therefore, that a warrant against H. to answer S. "in a plea of debt of £ 5 for obstructing and turning the public road leading, etc., from etc. to etc., being one month," is insufficient.
Held further, that this is a defect in substance and is not cured by verdict, nor to be overlooked in proceedings before a justice of the peace, in which mere matters of form are not regarded.
THIS was a warrant returnable originally before a justice of the peace against Harrington, from ANSON, to answer the plaintiff Scroter, "in a plea of debt of five pounds for turning and obstructing the public road leading from Haley's Ferry to Sneedsborough from Little Creek to Jones's Creek from 23 April, last past, until 23 May, following, being one month." Upon this warrant, judgment was given for the plaintiff for the five pounds and costs, by the justice of the peace; and upon successive appeals by the defendant to the county court and Superior Court, upon the plea of nil debet, verdicts were given for the plaintiff, and similar judgments rendered in those courts. The point made in the Superior Court, as stated in the record was, that the plaintiff could not maintain the suit in his own name only, under the act of 1784, ch. 14; because the fine belonged to the county, under the 17th section of the act, as was contended. This Court, however, did not consider that question at all, but without argument, decided for the defendant upon the insufficiency of the warrant. Judge Henderson delivered the opinion of the Court: (193) That the defendant may be informed of the nature of the charge against him, the law requires that the facts constituting it should be stated with precision, and, in cases where it is practicable, the law also against which it is said he has offended. In cases of penal statutes, which are written laws, and therefore may be referred to with ease and certainty, it is required that they should in the charge, be stated or referred to — anciently, by naming the statute by its title, or reciting its provisions; in modern times by referring generally to it in the following or similar terms "contrary to the statute in such case made and provided." The Common Law, being unwritten and traditionary, such reference to its provisions were impracticable, and therefore dispensed with. They are not made to apprise the court of the particular law, or to inform the judge what the law is; he is bound to take notice of all public laws, as well statute as common. The only case in which it has been said that this rule might be departed from in actions on penal statutes, is that of Coundell v. John, 2 Salk., 505. The same case is reported in Fortescue, and in Holt's Reports, and was decided by Holt. I confess that the opinion of the Chief Justice as stated in this latter book is to me unintelligible; it looks both ways. But if the reports stood free from all objections on the ground of inaccuracy, it is but a solitary case, and is contrary to principle and all the decisions before and since, and must be disregarded. A long string of these cases might be cited but I will only refer to one, in East. 2 East., 333. That case is much stronger than this, for there the conclusion is "whereby and by force of the statute in that case made and provided, an action hath accrued," etc. But it is not being stated that the defendant did the act contrary to the statute, it was held sufficient and the judgment of the Common Pleas reversed. Whether that was a misapplication (194) of the principle is not now the question — the principle was there acted on and professed to be applied. I think therefore, it follows very clearly that as this is an offense against a statute, and that statute is not recited nor referred to in the pleadings, the judgment must be reversed. These proceedings, it is true, originated before a justice of the peace, and as to matters of form, are not to be critically scrutinized; yet matters of substance ought not and cannot be overlooked. This defect is of this latter character, and therefore the judgment must be reversed, and judgment entered for the appellant.
Cited: Gardiner v. Sherrod, 9 N.C. 177; Worke v. Byers, 10 N.C. 232; Dowd v. Seawell, 14 N.C. 187; Turnpike Co. v. McCarson, 18 N.C. 307; S. v. Muse, 20 N.C. 466; S. v. Sandy, 25 N.C. 575; Turner v. McKee, 137 N.C. 263; Stone v. R. R., 144 N.C. 222.