Opinion
(June Term, 1849.)
1. Laws 1846, ch. 70, entitled "An act to protect houses and enclosures from willful injury," alters the act of 1836, 1 Rev. St., ch. 347. so as to reduce the offense of burning a mill-house, etc., from a felony to a misdemeanor, and substitutes the punishment of fine and imprisonment for that of death.
2. In this State, where one is indicted and tried as for felony, yet the facts averred in the indictment do not support the charge of felony, but amount to a misdemeanor, the court may give judgment for such misdemeanor.
3. Where a defendant was convicted on an indictment for a felony and appealed from the judgment thereon to the Supreme Court, and the error assigned in this Court was that the facts stated in the indictment did not amount to a felony, the Supreme Court, though it reverses the judgment for this error, yet will (under the provisions of the act establishing the court) give directions to the court below to give judgment for a misdemeanor, where it appears that is the judgment which should have been there rendered.
APPEAL from the Superior Court of Law of FRANKLIN, at Spring Term, 1849, Settle, J., presiding.
Attorney-General for plaintiff.
No counsel for defendant.
The prisoner was convicted of arson, in feloniously, unlawfully, willfully and maliciously burning a sawmillhouse, (455) the property of Malthus D. Freeman; and when brought up for sentence his counsel insisted that no sentence could be passed on him because, since the act of 1846, the offense was but a misdemeanor, and because the indictment charged it to be a felony, and, therefore, there could not be judgment on it as for a misdemeanor. The court, however, proceeded to judgment of death, and the prisoner appealed.
The principal question arises on section 1, ch. 34, Rev. St., and Laws 1846, ch. 70. The former enacts "that no person who shall be convicted of any willful burning of any dwelling-house or any part thereof, or any barn then having grain or corn in the same, or storehouse, grist or sawmill house, or any building erected for the purpose of manufacturing any article, shall be admitted to the benefit of clergy; but every person so convicted shall be excluded thereof and shall suffer death." The latter is entitled "An act to protect houses and enclosures from willful injury," and it enacts, "That if any person shall unlawfully and willfully burn any uninhabited house, outhouse or other building, or shall unlawfully and willfully demolish, pull down, deface, or by other ways or means destroy, injure or damage any dwelling-house, or any uninhabited house, outhouse or other building, or shall unlawfully burn, etc., any fence, etc., he or she shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by fine or imprisonment, or both, at the discretion of the court in which such conviction shall be had"; and it further enacts that it should be in force from the 1st day of March following.
(456) Several considerations induce the belief that by the act of 1846 it was in fact intended merely to supply those defects in the common and statute law whereby certain injuries to houses and enclosures were dispunishable as crimes and treated as civil injuries only. It had been held that burning and pulling down vacant houses or enclosures were not indictable, as for malicious mischief at common law; and the probability is, as urged by the Attorney-General, that the act meant simply to make acts of that kind indictable, and to leave those acts which were before crimes to the operation of those laws which constituted them crimes. The hypothesis is rendered plausible by the circumstances that the revised statute specifies certain buildings as the subjects of felonious arson, while that clause in the subsequent act which concerns burning does not designate one of them by name; that it has no express clause of repeal, and makes no allusion in its title or body to the revised statute; that it was not to operate immediately, but to go into force at a future day, thus indicating a purpose to create offenses thereby and to give notice of them. Moreover, it is not known that any legislative dissatisfaction was expressed with the protection which the previous law afforded for dwelling-houses and the other erections enumerated in the act of 1836. Hence, it may be well argued that the intention was to protect buildings which were not before protected, and not to take away any protection then existing. But those considerations cannot authorize a construction in opposition to the plain words of the act. If it was a remedial statute and concerned private rights merely, they would have more weight and, perhaps, be sufficient to justify the court in reading the act so as to make it meet the mischief. In questions touching crimes and punishments, however, and especially where life is affected, statutes are to be received more literally, both in the provisions creating (457) or abrogating crimes and affixing punishments. The interpretation of such statutes is to be benignant to the accused; and, therefore, words in his favor cannot be rejected. It is perfectly settled as a rule of construction that if, by the common or statute law, an offense, for example, be a felony, and subsequent statute by an enactment merely affirmative lessen its grade or mitigate the punishment, the latter is to that extent an implied repeal of the former. If this act had said that the burning of any uninhabited house or outhouse should be a misdemeanor, then it would be clear that the dwelling-house — that is, an inhabited house — and its outhouses would have been left to the protection of the old law. The subjects of the enactments would be different and the two acts could not well stand together. But suppose that part of the act had said, in so many words, that the burning of any dwelling-house, uninhabited house, or outhouse, sawmillhouse or barn should be a misdemeanor, punishable by fine or imprisonment. In that case it could not be argued that the former act was not repealed, which made the burning of a dwelling-house or mill a capital felony. The provisions would then be absolutely inconsistent in respect to one and the same building, mentioned specifically in both acts. In effect, it is the same thing here, at least as respects mills and the other erections mentioned in the act of 1836, excepting, perhaps, dwelling-houses. It is so by force of the words "other buildings" in the act of 1846, which are broad enough to include, and do, therefore, include them, unless excepted expressly or by a plain and almost necessary implication. Perhaps a dwelling-house may be excepted out of the operation of the clause in the act of 1846 which relates to the burning of houses, and left under the act of 1836, because, in the clause which immediately follows, and relates to destroying or (458) defacing buildings, dwelling-house is one of those enumerated and protected. "Dwelling-house" was inserted there because, before, the defacing of it was not a crime any more than the defacing of an "uninhabited house," and therefore they alike required protection then; and hence the inference is rational that "dwelling-house" may have been omitted in the prior part about burning because it was already a felony to burn that. Perhaps that may be so; but it is at least doubtful, and it is to be hoped the Legislature will not allow such a doubt to rest upon so important a point as the security of men's habitations from the deliberate and diabolical act of burning, and the degree of punishment to be inflicted therefor. But if that structure of the two clauses of the sentence will justify that construction as to dwelling-houses, it must, necessarily, be restricted to them and cannot extend it to barns and mills; because neither barns nor mills are mentioned in either clause of the act of 1846, but in both are included, if at all, under the same description, "other buildings." For, when it is argued that those words, "other buildings," do not include dwelling-houses as the subject of arson, for the reasons just assigned, and, therefore, that they do not include barns and mills, since, like dwelling-houses, they also were protected by the act of 1836, the answer presents itself, that these barns and mills are not within any part of the act of 1846, and thus one of its main objects would be defeated. The analogy between dwelling-houses and barns and mills must necessarily be kept up throughout, if acted on at all; and, therefore, if a mill be not within "other buildings" as to the burning, because a dwelling-house is not, so neither can it be as to defacing or destroying, for the same reason. Yet it is very certain that the Legislature would be much surprised to hear that, notwithstanding they have enacted that willfully to demolish, pull down, deface, or by other means destroy any dwelling-house, uninhabited house or (459) other building should be a misdemeanor, yet the courts held it to be no offense to pull down a mill or for a mob to demolish a cotton factory. Undoubtedly, that part of the act does protect all buildings, including mills, from malicious destruction. It seems to follow necessarily that under the very same terms they must be included in the prior part of the section, although, in the one clause, the act creates a crime in respect to them, and in the other it lessens the crime previously existing in respect to them and mitigates its punishment. It is possible this may not have been intended by the Legislature, and that the phraseology of the bill may have been adopted from inadvertence. If so, it is in the power of the Legislature to alter it. But, in the meantime, the courts must be governed by the language used, for that is the only light in this case to guide us to the intent. When the Legislature says expressly that the burning of any "uninhabited house or other building" thereafter "shall be deemed a misdemeanor," it is impossible for the Court to hold that, according to the law as it previously stood, the burning of another building, namely, a sawmill, is still a capital felony. The Court, therefore, holds that the prisoner's offense was not a felony, and that he was erroneously sentenced to be hanged.
The effect of the foregoing conclusion is now to be considered. For the prisoner it was contended that, although he was convicted of an act which is in law a misdemeanor, yet he could not be punished for it, because the indictment charged it as a felony. The reason does not strike one as very satisfactory; for the truth appears upon the record, so that the appropriate punishment for the offense, as it legally is, may and must be inflicted. It does not raise the grade of a crime, although the indictment does apply the epithet "felonice" to that which is not a felony. As, if an indictment charge that one "feloniously an assault did make" on another, it would still be but an indictment for an assault merely. It is true that in (460) England a count for a felony and one for a misdemeanor cannot be joined; for, by the law of that country, the modes of defense and trial are different. It is probable, too, that there an indictment might not be held good which charged a misdemeanor as a felony — especially if it appeared in the record that the party was tried as for a felony; because in that case the accused would not have had the benefit of counsel, to which he would have been entitled if tried for a misdemeanor. Webster's case, 1 Leach, 12; 1 Chitty Cr. L., 250. But those reasons have not the same force in our law. Our courts would no doubt not suffer the accused to be embarrassed by different counts of felonies and misdemeanors, and would put the prosecuting officer to an election to proceed on one or the other. But the accused is put to no disadvantage here by charging that as a felony which is not one. In the first place, as has been observed, charging it to be a felony does not make it one; and the trial might still be had as for the misdemeanor, and commonly would be. But if the trial were as for a felony, the accused would have no cause for complaint; for, instead of impairing his rights, it would add to his privileges, as he would in each case be entitled to counsel upon a trial as for a felony, and he would have thirty-five challenges of jurors, whereas he is entitled to only four in other cases. We can see no ground, therefore, why, upon such a conviction, the Superior Court might not have sentenced the prisoner to fine and imprisonment.
Another inquiry follows, which is, whether that can now be done. The Court is of opinion that it may. At common law, the rule as to the effect of reversing a judgment for error in the judgment appears to be different in criminal and civil cases. In the latter; where the error is in the judgment merely, the Superior Court is wisely allowed to reverse that given (461) and then to give such judgments as the court below ought to have given; for the merits have been tried and further litigation is useless. But Lord Coke lays it down with respect to criminal cases, that "if the judgment be erroneous, both that and the execution and all former proceedings shall be reversed by writ of error," 3 Inst., 210; and the passage is cited by Sergeant Hawkins with approbation. 2 Hawkins P. C. B., 2, ch. 50, sec. 9. Although at one time the position seems to have been doubted, yet it has been more recently held that upon reversal for error in the judgment, as where the proper punishment was death, but that laid was transportation, the court of error had not power to pass the proper sentence, nor remit the case for that purpose to the court which tried it, but was obliged to discharge the prisoner. Rex v. Ellis, 5 B. and C., 395; Rex v. Bourne, 7 Ad. and Ellis, 58. So that, although the conviction be regular and proper, an error in a sentence precludes the power to give a right one; and from the recent case of O'Connell, such seems still to be deemed law by the highest tribunal in that country, as upon the reversal of the judgment in the House of Lords the accused was not sent back for a proper sentence, but discharged. We own that we can perceive no good reason for the rule; and therefore that we consider the Legislature of the State wise in having altered it, as we think has been done. In prescribing the jurisdiction of this Court, the statute enacts that the Court shall have power to determine all questions at law brought before it by appeal from a Superior Court, and in every case may render such sentence and judgment as on inspection of the whole record it shall appear to them ought in law to be rendered thereon; provided that, in criminal cases, the decision of the Supreme Court shall be certified to the Superior Court, which shall proceed to judgment and sentence agreeably to the decision of the Supreme Court and the laws of the State. It thus appears that this Court in no criminal cases gives judgment — either modifying or (462) even affirming the judgment below. But it decides upon the whole record what ought to have been the judgment, and certifies that accordingly to the Superior Court, where, as the case may be, a venire de novo is awarded or the former judgment repronounced, or modified, as directed by this Court. The defendant is not before this Court at all, but remains below, and a transcript only is sent here; and our decision upon that is remitted to the Superior Court for further proceedings there in conformity to it. It is clear, therefore, that this Court may say, not only that a wrong judgment was before given, but what would have been the right one, and that the Superior Court is to proceed accordingly. The power of this Court in prescribing the judgment is, indeed, necessarily subject to the limitation that, where the punishment is discretionary, the kind only can be prescribed, leaving the measure to the judge on the circuit. Such has been the course since the Court was constituted, we believe. S. v. Kearney, 8 N.C. 53; S. v. Yeates, 11 N.C. 187, and S. v. Seaborn, 15 N.C. 305, are examples of it; and there have been many others.
The Court therefore holds that the judgment of death must be reversed, and the case remitted to the Superior Court with directions to proceed to pass sentence on the prisoner, upon the conviction, of fine or imprisonment or both, at the discretion of the Superior Court, and also to give judgment against him for the costs of the prosecution.
PER CURIAM. Ordered accordingly.
Cited: S. v. Clark, 52 N.C. 168; S. v. Leak, 80 N.C. 406; S. v. Watts, 82 N.C. 659; S. v. Slagle, ib., 654, 5; S. v. Perkins, ib., 683; S. v. Eason, 86 N.C. 676; S. v. Staton, 88 N.C. 655; S. v. Lanier, 89 N.C. 519; S. v. Wright, ib., 510; S. v. Edwards, 90 N.C. 710; S. v. Green, 92 N.C. 784; S. v. Goldston, 103 N.C. 326.
(463)