State v. Pugh, 3 N.C. 55, 2 Hayw. 55 (1798)

April 1798 · North Carolina Superior Court

3 N.C. 55, 2 Hayw. 55

State vs. Leban Pugh and four others.

nr'HIS was an indictment for a riot. Two of the defendants -®- were how tried, and one of. them found guilty, with the others named in the indictment, except the other defendant nor tried, whom they found not guilty: One of the remaining three not before the court, was dead, another in South-Carolina where he resided, arid one in this state, but not taken. The attorney-general moved for judgment.

Haywood, Justice!

I have a doubt whether judgment cat* now pass upon the defendant, who is now convicted.' — I will look into the books: Let it be again moved to-morrow.--* Accordingly the next day the matter being again moved,

Haywood, Justice.; — My doubt yesterday was, that as two of. the defendants not brought • into the court were yet alive, and as it is riot impossible but that they may still be brought in and tried and acquitted, it still remained doubtful whether the prisoner now convicted might not be legally innocent; for the acquittal of these two, together with the acquittal of the one which has already taken place, would leave but two to be guilty — ■ and so not a riot. I have looked into 1 Str. 193, the King vs. Kennersley; and into 2 Burr. 1264: In one of which cases the objection was stated that arose in my mind, and was there answered by saying that the verdict estopped the party to say he was not guilty ; and the court deemed it a sufficient answer.— Upon this authority, I shall proceed to judgment against the defendant now convicted.

He was fined and imprisoned for three months.