State v. Raiford, 13 N.C. 214, 2 Dev. 214 (1829)

June 1829 · Supreme Court of North Carolina

13 N.C. 214, 2 Dev. 214

The State v. Philip Raiford.

From Wayne.

Appeals to this Court can only be brought for errors in law. The determination on the trial of an issue of fact, whether tried by a Judge or a Jury, cannot be reviewed. Therefore the decision of the Judge below on the plea of mil liel record is conclusive. The cases of the State v. Isham, (3 Hartiks, 185) and the State v. Gray-ton, {Ibid. 18!F) approved.

Per Toomjsk, Judge, a scire facias which sets Forth that the Defendant “ was fined nisi according to act of Assembly,” is not supported by an entry that the Dtfendant being under recognizance “ was called and failed.’’

The case of the State v. Dickinson, (3 Murph. 10) distinguished from tisis, and approved by Tooinut, Judge.

This was a sdre facias in the usual form, upon a recognizance for the appearance of the Defendant at the Spring Term, 1828, of Wayne Superior Court, to answer the State upon a charge for an assault and battery. The sdre facias recited that the Defendant “ was duly-called, and failed to appear, and was fined nisi according to act of AssemblyUpon the plea of nul tiel record, Me. Solicito!’ Miller produced the following entry made at Spring Term, 1828 : “Fhilip Baiford, who was bound to appear at this term to answer the State on an indictment against him, was called and failed.” Upon this evidence bis honor Judge Norwood, found the issue in favor of the Defendant, and Mr. Solicitor appeal'd.

June, 1829.

t-t „ , , . , . ,, JNo Counsel appeared lor the Delendant in this Court, and the cause, was submitted by the Attorney-General for the State, without argument.

Toomer, Judge.

It is a juridical maxim, that to matters of law the Court replies ,* to matters of fact tho jury. The issue joined on a plea of mil lid record, involves a question of fact as to the existence of a record. This is not a matter of law, hut it is such a question of fact, as must tie tried and decided by the Court. Should the jury in the Court below, on the trial of an issue of fact, find a verdict contrary to the weight of evidence, this Court cannot, for that reason, disturb the verdict. If the Court below in trying a question of fact, as to the existence of a record, w hich is properly to be tried by that tribunal, draws incorrect inferences from the evidence, this Court does not see the evidence, and cannot interfere with the decision. (State v. Isham, 3 Hawks, 185—State v. Grayton, et al. 3 Hawks, 187.)

It is not necessary to inquire, whether the Court below had authority to mend this sci.fa. as in proceedings between individuals, parties to a civil suit. If the authority be conceded, the State can derive, no benefit from the concession. Motions to amend the pleadings are addressed to the discretion of the Court, and a refusal to exercise such discretion, is not a de.ci.sion, which can be revised in this Court. (Armtsrong v. Wright, 1 Hawks 93—5 Crouch 15—6 Cranch 253.)

The following opinion is extrajudicial, but as I concur with the judgment of the Court below, there can be no impropriety in expressing that conrui recce.

I think there was no such record, as that set forth in the sd. fa. The judgment of the Court was correctly rendered on the plea of nul tid record. The sci.fa. states, “ was fined nisi agreeably to act of Assembly.f" JS'o judgment nisi was rendered. No act of the General Assembly prescribed the penalty ; no fine was imposed. The record of one term showed the recognizance, the record 0f tlic succeeding term simply exhibited this entry, “ Defendant called and failed.,, The case of the State v. Dickinson, (3 Mur. 10,) has not been overlooked, but is considered not applicable to the present proceeding.— There a recognizance was duly entered into ; the cog-nizor failed to appear; the recognizance was forfeited; judgment nisi was rendered against him, for the sum specified in the recognizance. When the sci.fa. issued, calling on the cognizor to show cause why execution should not issue against him, for the sum of ¿8800 for a fine on a forfeited recognizance, in failing to make his appearance, as he was bound to do, the Court decided that the word jine might be rejected as surplusage; but retaining it did not obscure the sense of the sci. fa. And the facts affirmed in the sci.fa. substantially agreed with the record. There was a forfeiture recorded, and a judgment nisi for the sum of ¿5800 agreeably to the recognizance, and as set forth in the sci.fa. And the only variance between the record averred in the sci.fa. and the record offered in e\ idence to support the averments, consisted in the insertion of the word fine in the sci.fa.

Per Curiam. — Let the judgment be affirmed.