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, chap. 471), creating the Eastern District Court, sec. 6 whereof expressly provides for such appeals. Sec. 23, of said act transferred to the new Eastern District Criminal
Court all causes pending in the Eirst Criminal Circuit Court,
*722The judgment of the Superior Court overruled the Criminal 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, secs. 488 (5), which provides that the answers of a defendant in supplementary proceedings “shall not be used as evidenec against him in any criminal proceeding or prosecution.” Second. That the Judge of the Circuit Court, having held that this offense was a misdemeanor, which by sec. 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 beforo 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 *723N. C., 712), and indeed, the defendants did not except as to them.
As to the second point: Th'ei 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.
ITp to the Act of 1891, chap. 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, sec. 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 *724secrecy and malice, or with deceit 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, chap. 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, sec. 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.
Eeversed.
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 *725possibly not understood, we will consider now the only exception which the petition to reargue insists the Judge of the Superior Court should hare passed upon and held in favor of the defendants, i. 0., that the sheriff by attachment, having seized the ledger and counter-book of the defendants, they wore put in evidence against them. There certainly was no error in using the defendant’s own entries against them. Tlie shoes of a party charged with crime can be taken and íiüed 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, tire 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 sec. 1237 as it had to pass it, and they committed the crime subject to the probability that appeals in rulings upon matters of law7 w'orrld 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 ease could be reviewed at the instance of the State *726in 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 regulating-appeals from the Eastern District Criminal Court, chap. 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.