Opinion
(Decided 22 December, 1899.)
Indictment, Conspiracy — Appeal by State — Evidence — Supplemental Proceedings — Statute of Limitations — Misdemeanor — Felony — Books and Entries of Defendants — Eastern and Western District Criminal Courts.
1. The Act of 1899, ch. 471, sec. 6, provides for appeals by the State in cases going from the Eastern District criminal courts to the Superior Court; and it is no objection to the validity of the act that the same provision is omitted, by inadvertence in regard to appeals going from the Western District criminal courts to the Superior Court.
2. The same Act of 1899, sec. 23, transferred to the new Eastern District criminal court all causes pending in the First Criminal Circuit Court.
3. Facts developed on the examination of defendants in supplementary proceedings are, by The Code, secs. 488 (5), forbidden to be used in evidence against them in any criminal proceeding or prosecution. Where the trial judge in the criminal court carefully excluded from the jury all evidence of the examination of the defendants in supplemental proceedings and all evidence derived therefrom, and only admitted evidence derived from proceedings before referees, before and after the supplemental proceedings, although of a similar character as that contained therein, there is no violation of the rights of the defendants under the statute.
4. The statute of limitations has no applications to the offense charged. The Code, sec. 1097, having given the courts power to punish it with imprisonment in the penitentionary, the Act of 1891, ch. 205, makes it a felony.
5. As a rule of practice and prudence, when a defendant is convicted in the criminal court, and upon appeal to the Superior Court is awarded a new trial on some of the alleged erroneous rulings, he should ask for a decision upon all his points taken of record, so that, should the State appeal from the judgment granting a new trial, he may appeal also, from any adverse decision, to the Supreme Court. As, however, the system of appeals from the criminal courts is new, and not generally understood, the points taken of record but not passed on by the judge of the Superior Court are, in this case considered on the reargument asked for.
(1) The sheriff having seized by attachment the ledger and counter-book of the defendants, there was no error in using defendants' own entries therein, on the trial.
(2) At the time of the commission of the alleged offense, the statute allowed no appeal to the State from the ruling of the Superior Court judge. The statute of 1899, ch. 471, ratified March 6, 1899, allowed such appeal to the State, and the appeal in this case was taken July 7, 1899. The State had a right to regulate appeals in its own courts.
(3) No such right of appeal is allowed the State in the Western District Criminal Courts. The omission does not injuriously affect the defendants.
(4) This exception relates to the objection in regard to the examination of defendants in supplementary proceedings; and was sustained by the judge of the Superior Court, and has already been considered in the opinion filed.
INDICTMENT against the defendants, John P. Mallett and C. B. (719) Mehegan, also H. T. Latham (not on trial), for conspiracy to cheat and defraud their creditors, Julian M. Baker and Ida M. Adams, administrators, found in the Circuit Criminal Court of EDGECOMBE County, at November Term, 1897, and tried before Sutton, J., at September Special Term, 1898.
Attorney-General, Jacob Battle and Gilliam Gilliam for the State.
G. M. T. Fountain for defendants.
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.
After the above opinion of the Court had been filed, but before it had been certified down, the defendants filed a petition for reargument, assigning the following grounds: First. Because there were other exceptions raised by the defendants on their appeal from the criminal court to the Superior Court which the judge of the latter court did not pass upon. The defendants should have requested the judge to pass upon those exceptions, and if he had failed to do so, or held adversely to the defendants, they should have appealed. State v. Bost, at this term. In fact, those exceptions are trivial, and the judge passed upon all that merited his attention, but as the practice in this class of appeals was possibly not understood, we will consider (725) now the only exception which the petition to reargue insists the judge of the Superior Court should have passed upon and held in favor of the defendants, i. e., that the sheriff by attachment, having seized the ledger and counter-book of the defendants, they were put in evidence against them. There certainly was no error in using the defendant's own entries against them. The shoes of a party charged with crime can be taken and fitted to tracks as evidence, and in one case, when a party charged with crime, was made to put his foot into the tracks, the fact that it fitted was held competent. State v. Graham, 74 N.C. 646. Nor has it ever been suspected that, if upon a search warrant, stolen goods are found in possession of the prisoner, that fact can not be used against him. Here, the books came legally into possession of another, and the telltale entries were competent against the parties making them in the course of their business.
2. The next exception in the petition is, that at the time of the commission of the offense the statute allowed no appeal to the State from the ruling of the Superior Court judge. But the defendants had no "vested rights" in the remedies and methods of procedure in trials for crime.
They can not be said to have committed this crime, relying upon the fact that there was no appeal given the State in such cases. If they had considered that matter they must have known that the State had as much power to amend section 1237 as it had to pass it, and they committed the crime subject to the probability that appeals in rulings upon matters of law would be given the State from these intermediate courts. At any rate, their complaint is of errors in the trial court, and when they appealed to the Superior Court they did so by virtue of an act which provided that the rulings of that court upon their case could be reviewed at the instance of the State in a still higher court. The appeal was certified up to the Superior Court, April 1, 1899, and on July 7, 1899, the appeal was taken to this Court. The statute (726) regulating appeals from the Eastern District Criminal Court, chapter 471 Laws 1899, was ratified March 6, 1899.
3. The petition further urges that it is a discrimination because the act creating the Western District Criminal Court fails to give the State the right of appeal. We do not see how such omission injures the defendants. The State has control of its own legislation as to the cases in which it will permit appeals in its own behalf in its courts. Hurtado v. California, 110 U.S.
4. Lastly, the petition urges that the judge of the criminal court refused a request to find the facts upon a preliminary plea in bar because not made till after three counsel had spoken on the merits. That simply raises the question discussed in the previous opinion as to the allegation that evidence of testimony taken in the supplementary proceedings was used against the defendants. The judge, on this plea, held, that it had not been, and all through the trial, at every turn, rejected all evidence of what transpired in the supplementary proceedings. The former, or quashed indictment, was only introduced in reply to the plea that the present indictment was barred by the statute of limitations.
The former opinion of the court is affirmed, and this will be certified to the Superior Court of Edgecombe County.
Motion denied.