State v. Perry, 50 N.C. 252, 5 Jones 252 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 252, 5 Jones 252

STATE v. WILSON PERRY and others.

In a bill of indictment under 71 ch., 7 sec. of Rev. Code, where-it is charged that a mill-owner “ did keep in his mill a false toll-dish, for the purpose of exacting more toll than by law he of right ought to do,” and that “by means of said false toll-dish, ho exacted unlawful toll,” against the statute, &c., it was Held, that these allegations were sufficiently supported by proving that the mill-owner kept a measure containing one-seventh, and another one-sixth of a half bushel, with which ho openly took toll of all customers.

Held. That the words false toll-dish, as used in the-statute, mean a toll-dish measuring more than one-eighth of a half bushel.

Held. That it was not necessary to aver the capacity of the toll-dish charged to bo a false one.

IMd further, That it ought to be averred in the bill, that the mill was one used for grinding- wheat and corn; but when, it was charged that it was a mill where a false toll-dish was used to exact more toll than was lawful, contrary to the statute, it does appear, with sufficient certainty, that it was a mill for grinding corn and wheat.

This was an indictment against the owner of a public mill for keeping a false toll-dish, tried before JDioK, Judge, at the last Spring Term of Perquimons Superior Court.

The indictment, in its material parts, was as follows :

“ State of North Carolina, Perguimons County.

“The jurors for the State, upon their oath, present, that Wilson Perry, James Davis and Ambrose Mundin, late &c., in the county &c., on 1st day of January, 1857, and from that time since &c., have been the owners of a certain public steam-mill in the said county; and the jurors aforesaid, do further present, that the said Wilson Perry, &c., owners of the said public steam-mill as aforesaid, did, on the first day of August, A. D. 1857, and on divers other days, both before and since, keep in their said mill, a false and fraudulent toll-dish, for the purpose of exacting more toll from the good citizens of the State, than by law, they, of right, ought to do, and that thej", the said Wilson Perry, &c., have, by means of the said false and fraudulent toll-dish, exacted unlawful toll of many of the good citizens of the State, contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State.”

The act of Assembly, under which the defendants were indicted, Eovised Code, chap. 71, sections 6 and 7, is as follows :

Sec. 6. “ All millers of public mills shall grind according to turn, and shall well and sufficiently grind the grain brought to their mills, if the water will iiermit, and shall take no more toll for grinding than one-eightli part of the indian corn and wheat, and one fourteenth part for chopping grain of any kind, and every miller and keeper of a mill, making default therein, shall, for each offense, forfeit and pay five dollars to the party injured.”

Sec. 7. “ All millers shall keep in their mills the following measures, namely, a half bushel and peck of full measure, and also proper toll-dislies for each measure; and every owner by himself, servant or slave, keeping any mill, who shall keep any false toll-dishes contrary to the true intent and meaning of this chapter, shall be deemed to bo guilty of a misdemeanor.”

CASE SENT UP BY HIS HONOR.

“ It was proved on the part of the State, that the defendants owned a steam-mill in the county of Perguimons, six months or more preceding the finding’ of this bill, constructed for the sawing of lumber, and grinding grain for toll, and as such, was kept and used by them; that there were kept in the mill a half bushel measure, and no pock measure, and also measures containing 1-6 and 1-7 of a half bushel, and these two latter were used for measuring and taking toll from the grain brought there by customers for grinding; that the measures contained respectively what they purported to contain in quantity; that the defendants, on divers days before the finding of the bill, and within six months preceding, took from their customers, as toll, one-seventh of the corn and one-sixth of the wheat ground at their mill; that this rate of toll was the established and known usage of the mill, and was known to all those who carried there their grain for grinding, and that the toll-dishes were constructed to contain respectively the one-seventh and the one-sixth of a half bushel, and did contain that full measure.”

The Court charged the jury, that if they believed the facts to be as above stated, the defendants -were guilty. Defendants excepted.

Yerdict for the State. Judgment and appeal.

Attorney General, for the State.

Smith and Jordan, for defendants.

Pearson, J.

It is indictable at common law to cheat by means of false weight, or false measure; but when more than the proper amount is openly exacted, and is submitted to by the opposite party with a knowledge of the fact, there is no fraud, which is a necessary ingredient to constitute the offense. In respect to owners of public mills, in addition to this liability at common law, the statute imposes a penalty for the mere act of taking more than one-eighth part as toll for grinding corn and wheat, without reference to the question of fraud, Rev. Code, ch. 71, sec. 6. And by the 7th section, the owner is made liable to indictment for keeping in the mill “ a false toll-dish contrary to the true intent and meaning of this chap-tor.” The defendants are indicted under the 7th section, and the first question is, does the proof make out the offense? They kept in their mill two toll-dishes, one containing a seventh, and the other a sixth, of a half bushel. But it is insisted these were not false toll-dishes, for they contain the measure which they purport to hold, and to make them false, it is necessary they should contain more or less than they purport. W e admit that such is the ordinary' meaning of the word “ false” as applied to a measure, but we are satisfied such is not the sense in which it is used in the statute. The words “contrary to the true intent and meaning of this chapter,” are added to the Avords “ false toll-dish,” in order to explain the sense in which the Avord is used. According to the statute, the proper toll is one eighth ; the proper toll-dish isa measure containing one-eighth; and a false toll-dish, as contra distinguished from a proper one? is a measure which purports to be a toll-dish, and is used as such, but contains more than “ one-eighth.” In this sense, the defendants kept in their mill a false toll-dish.

The defendants’ counsel moved in arrest of judgment for tAvo supposed defects in the bill of indictment. The draftsman confounded, to some extent, the common law offense of cheating by a false measure, the penal offensé under the 6th section of the statute for taking unlawful toll, and the indictable offense under the 7th section of keeping a false toll-dish; but by rejecting a part as surplusage, and by aid of the statute, Bev. Code, chap. 35, sec. 14, we think “■ sufficient matter appears to enable the Court to proceed to judgment.” See State v. Boon, 4 Jones’ Rep. 463. A bill would be good in this form: The jurors &c., present, that A B on the first day of January, A. D. 1857, and from that day &c., was, and has been, the owner of a certain public mill, situate in the said county, for the pv/rpose of grinding wheat and corn for toll, and that on the 1st day of August, A. D. 1857, and on divers other days &c., the said A B, in his mill aforesaid, did keep a false toll-dish of the contents of more than one-eighth of a half bushel and peek of full measure, to wit, of the contente of one-seventh pa/rt of a half bushel, contrary to the form, &c,

The first objection taken, that the bill does not allege tin-purpose for which the mill was used, would be fatal, but fo: the fact, by afterwards introducing the word toll-dish, in the connection that it was used, for the purpose of exacting moro toll than was lawful, it does appear, with ordinary certainty that it was a mill used for the purpose of grinding wheat anc. corn for toll. “ Taking toll” has a definite sense, although i is general; but when connected with the fact, that it wa. taken in a mill by means of a toll-dish, it becomes partícula), and, in the ordinary meaning of the word, necessarily convey ■ the idea of a mill for grinding wheat and corn for toll. It i' true, that other grain, e. g. rye and buckwheat, are sometime i ground; but it is a universal fact, that a mill used for grind ing grain at all, is always used to grind wheat or corn, o' both. It must also be observed, that the indictment pursue; the words of the statute, where there is the same want of precision, and the purpose of grinding wheat and corn is take), for granted ; and the regulation of toll for grinding is confined to those species of grain.

The other objection, that the indictment does not aver the contents of the false toll-dish, so that the Court may know that it was more than one-eighth of a half bushel, is untenable. ¥e think it sufficient to aver that it was a false toll-dish, contrary to the form of the statute. The Court knows, from the statute, that one-eighth is the proper measure; so, of course, a false toll-dish is one, the contents of which is more, than one-eighth, and cui bono aver under a videlicet that it wa; one-seventh, when the averment would be sustained by proa of a measure of the contents of one-fifth or any other measure more than one-eighth ? Besides, in this respect, also, the in - dictment pursues the words of the statute, and if these words are sufficient to create an offense, they must, as a general rule, be sufficient to charge it; State v. Stanton, 1 Ire. Rep. 424, There is no error.

Pek CukxaM, Judgment affirmed.