State v. Smith, 5 N.C. 213, 1 Mur. 213 (1808)

July 1808 · Supreme Court of North Carolina

5 N.C. 213, 1 Mur. 213

The State v. Smith.

T > From Wilmington District.

Motion to quash an indictment. In cases of doubt, the Court will not quash an indictment. It is due to the State, and to the rights of the citizen, in such cases, to have the facts enquired into by a Jury, and if the facts charged he affirmed by their verdict, the Defendant can have the same advantage of legal points upon a motion in arrqst, as upon a motion to quash. Therefore, the Court refused to quash an indictment, which charged “ that the Defendant, fraudulently intending to injure A. B, unlawfully and fraudulently procured a certificate of a survey on an entry of lands in the entry-taker’s office of Brunswick county, to be made by C. D. the surveyor of said county; which certificate set forth, that the lands described therein hadbeen surveyed, and that I-I. and G. were chain-carriers; when, in fact and in truth, the lands described in the certificate were not surveyed, and when, &c. H. and G. were not chain-carriers.”

This case was sent to this Court for the opinion of the Judges, upon a motion to quash the following indictment.

«STATE OE N ORTH-C AROLINA, > «.wiMnsoTON district. 5

Superior Court of Law, May Term, 1806.

“ The Jurors for the State, upon their oaths present, that Benjamin Smith, late of the county of Brunswick, plantel-, fraudulently intending to deceive one Alfred Moore, on the fifth day of January, in the year of our Lord one thousand eight hundred and three, at the county aforesaid, in the district aforesaid, unlawfully and fraudulently did procure a certificate of a survey on an entry of lands in the entry-taker’s office'of said county, and numbered eighty-sis, to be made by John Collier Baker, the surveyor of said county: which said certificate set forth and certified, that the lands described in the same had been surveyed, and that John South and George Logan were chain-carriers : w-^en’ *n an<^ ™ troth» the said lands described in said certificate, were not surveyed, and when, in fact and in truth, the said John Smith and George Logan were not chain-carriers; all which, the said Benjamin Smith then and Hiere well knew, to the great damage of the said Alfred Moore, the evil example of all others in like cases offending, and against the peace and dignity of the State.

(Signed,) “HENRY SEAWELL, Atto. Gen’l.” j

Seawell, Attorney-General.

It is contended in this case, that the indictment is insufficient; 1st, because it does not set forth any false token by which the fraud on Moore Avas intended to be effected ; 2d, because it does not set forth how, or in what manner Moore could be in" jured ,* nor 3d, how he was injured. In support of the first objection, 2 East Cr. Law 817, is cited. It is láid down by East generally, that obtaining the property of another by false and deceitful means, short of felony, constitutes an offence which is cognizable by the Criminal Law j but that these means must be such as ordinary prudence and precaution would not guard against or detect : and the instances of false dice, weights, &c. are enumerated. It requires but little consideration, to discover that the principle cited from this author has no relevancy to the present case. The present indictment does not charge the Defendant with obtaining the property of Moore ; but it charges him with a misdemeanor totally different and distinct in its nature from any of the cases cited from East. It is in plain terms, for procuring a surveyor, a public officer, to make a false certificate, with intent to injure and defraud Moore. It may be safely said, that the law will1 never requipe a false token to be stated in a case, which is not susceptible of any ; and this leads us to a consideration of cases of misdemeanor, founded in fraud, of this description. The cases of Rex v. Vaughan, 2 Burr — and Rex v. Johnston, 1 Show. 1, are in point, besides many others which might be adduced.

The second objection may be answered by considering the third. In examining the law with regard to such misdemeanors, it will be found that the cases are divided into two classes : first, where the doing of an act lawful in itself j but which, on account of its consequences, and the intent with which it was done, is made a criminal offence: secondly, where an unlawful act is charged. In the first class, as the act itself is lawful, it must necessarily be stated what consequences resulted, and with what intent it was committed; otherwise the law would he reproached for punishing an act acknowledged to be lawful. In such Case, the temporal Courts will never impute to a man the doing of a lawful act, with an unlawful intent, unless the intent be manifested by some resulting injury ; both of which.must he set forth and proven. The two latter circumstances being unlawful, constitute •the offence.

It is charged in this indictment, that the Defendant procured a public officer to make a false certificate.— Was there ever a time when any false practice in a public officer was not considered a misdemeanor ? Can any case be shewn, where in charging a public officer, it was held necessary to shew any thing further than a violation of his duty? That forms the essence of the indictment j and it is not necessary to show that any particular injury has resulted to the Community. The case of the State v. Glasgow, decided in this Court at June Term, 1800, proves this position. There the Defendant was charged with improper conduct in office, in such manner as could only defraud the United States: yet the Court held, that the Defendant being a public officer, and appointed for public purposes, any departure from the duties of his office, was a misdemeanor, although no particular injury to the community resulted therefrom. So also in 6 East Iiep. 464, an endeavour to provoke another to commit a misdemeanor, was held indictable ; and i» a East Iiep. 5, to solicit a servant to steal ins master’s goods, although it was not averred that the goods were stolen, or laid in any other manner than jjiei,e]y |jy ^hc term “ solicit,” was held indictable, and the prosecution sustained. So in 1 Bos. and Pull. 180, an indictment for endeavouring to induce a soldier to leave the King’s service, was held to be sufficiently laid by the word “ endeavour,” although exceptions were taken to the indictment, because the means used were uot set forth, and the counsel in argument, assimilated it to the case of false tokens in frauds. The clear principle to be collected from these cases, is this, that they charge an unlawful act, which being sufficient to constitute an offence, all consequences are totally unnecessary.

It has been argued, that because the indictment lays the offence to the injury of Alfred Moore, it ought to show how ho could be injured. To tins it may be answered, that although all the cases of perjury or forgery are purely cases of fraud, it never was thought necessary to state such an interest in the person against whom the evil intent was aimednor was it ever considered that cither of those cases were susceptible of any other token than simply the unlawful act. If it be necessary to state the title of the party intended to be injured, then on the trial it would be necessary to prove it ■, and although laid to the injury of the party, such proof has been held to be unnecessary. The plain inference then is, that in both cases, the acts being unlawful in themselves, required nothing further to be stated.

It is also contended, that the surveyor cannot be indicted, and therefore, the accessory cannot$ that the act of 1777, oh. 1, has directed the surveyor to make actual surveys, and to do many other things in regard to his office, by differed substantive clauses and sections, and at I a t, added a penalty of five hundred pounds, and a forfeiture of office and that therefore, the only punishment he is liable to, is to pay the five hundred pounds. But let us ask bow is the surveyor to be deprived of his office without a conviction upon indictment ? The Legislature have said, that besides paying the five hundred pounds, he shall lose his office : and it must be intended that he should be deprived of it by constitutional means, that is, by indictment. But the indictment docs not charge the surveyor with not complying with the act of Assembly ; it simply charges, that a surveyor, a public officer, made a false return. If he be a public officer, and did make a false return ; and if a false return in a public officer be an offence, then the Defendant is guilty for causing the act to be done.

Tavxoh, Judge,

delivered the opinion of the Court:

We are not prepared to say that the offence charged in the indictment is not the subject of a criminal prosecution, or if it be, that it is stated in the bill with such plain and manifest imperfection as to call for the extraordinary interposition of the Court. In cases of doubt, it is alike due to public justice and the rights of the citizen, that the facts shall be enquired into by a Jury ; and if the charges be affirmed by their verdict, the questions of law, introduced in the present discussion, will be still open to the Defendant on a motion to arrest.