Opinion
(June Term, 1843.)
1. All the acts passed at the same session of the Legislature are to be considered as but one statute.
2. Therefore the Revised Statutes, passed at the session of the Legislature in 1836, constitute but one statute.
3. All persons, and not planters only, are subject to indictment for not keeping up good fences, as required by the 34th and 48th chapters of the Revised Statutes.
4. Where the county is mentioned in the caption, the last of the words "then and there" in the body of the indictment will be understood as referring to that county.
APPEAL from Manly, J., Spring Term, 1843, of EDGECOMBE.
The defendant was tried and found guilty upon the following indictment, viz:
STATE OF NORTH CAROLINA, Edgecombe County — ss.
Superior Court of Law, Fall Term, 1842.
The jurors for the State upon their oath present, that Noah Bell, late of the county of Edgecombe and State aforesaid, on the (507) 1st day of July, in the year of our Lord, one thousand eight hundred and forty-two (1842), and continually before and after that time, during the crop season of the year, then and there being the occupier and cultivator of a farm as owner of the same, and being bound during the said crop season to keep up his fences around his cultivated fields five feet high, unlawfully, willfully and negligently did permit his said fences around his said fields to be and remain during the crop season of the year aforesaid, less than five feet high, there being no navigable stream nor deep water course around the same, to the common nuisance of the good people of the county and of the State then and there being, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
After conviction, the defendant moved in arrest of judgment, upon these grounds: First. Because it was not sufficiently averred in the bill that the defendant was the cultivator of the field in question. Second. Because the indictment concluded "against the form of the statute" and not "statutes," as it ought to have done. The motion in arrest was overruled and judgment pronounced, from which the defendant appealed.
Attorney-General for the State.
B. F. Moore for the defendant.
Chapter 48, sec. 1, Revised Statutes, declares that every planter shall make a sufficient fence about his cleared ground under cultivation, at least five feet high, unless where there shall be some navigable stream or deep water-course, that may be deemed sufficient, instead of a fence aforesaid. Chapter 34, sec. 42, Revised Statutes, declares "that all persons neglecting to keep and repair their fences during crop time, required by an act concerning fences, passed at this present session, shall be liable to be indicted." The defendant (508) was indicted for not keeping up a sufficient fence, and the indictment concludes against the "statute." This conclusion in the singular number, we think, was right, because the said two chapters, which we admit must be taken together to make up the body of the defense, are but parts of one statute. The law which was embraced in both these chapters, was passed in a constitutional form, at one and the same General Assembly, to wit, the session of 1836. All laws passed at one session of Parliament were anciently strung together, making so many capitula, or chapters of one statute. Dwarris on Statutes, 2. All the acts of one session of parliament, taken together, make properly but one statute; and therefore when two sessions have been held in one year, we usually mention Stat. 1, or Stat. 2, of the particular year of the reign of the then King. 1 Black. Com., 85, 86. Before the session 1836, the portions of the two above mentioned chapters were contained in two statutes, because they became the law by force of two acts, passed at different sessions of the Legislature. But since the acts have all been revised and reenacted in a constitutional manner at one session of the Legislature, they are now but one statute, and were so when the defendant committed the offense charged in this bill of indictment. It is said, however, that the Legislature did not intend that all the old act of Assembly, which were revised and reenacted at the session of 1836, should be considered as one statute. We have no evidence that the Legislature intended otherwise, certainly it has not expressed a contrary intention; and, therefore, the rule which has prevailed for ages must still be adhered to by us.
Secondly. It is said by the defendant's counsel, that the offense mentioned in the statute, is not described with sufficient certainty in this indictment. This objection is founded upon the indefiniteness of the phrase, "continually before and after that time," but this phrase is modified by the subsequent words "during crop time," so as to bring the offense within the description in chapter 34. It is further objected that in chapter 48 the enactment applies only to planters, and that (509) the indictment is defective in not having averred that the defendant was a planter; but to this, we think, it is properly replied that chapter 34 applies the enactment to "all" persons neglecting to keep up their fences during crop time.
It is again objected, that the offense is not stated in the indictment to have been committed within the county of Edgecombe, where the defendant was tried. We think that the last of the words, "then and there," sufficiently refers to the county of Edgecombe, mentioned in the caption. S. v. May, 15 N.C. 328. All the objection which have been taken, are overruled.
PER CURIAM. No error.
Cited: S. v. Tolever, 27 N.C. 454; S. v. Hoyle, 28 N.C. 3; S. v. Melton, 44 N.C. 51; S. v. Taylor, 69 N.C. 545; Rhodes v. Lewis, 80 N.C. 139; S. v. Kittelle, 110 N.C. 578; Wilson v. Jordan, 124 N.C. 688; Greene v. Owen, 125 N.C. 219; S. v. Patterson, 134 N.C. 620.
(510)