State v. Kearzey, 61 N.C. 481, 1 Phil. 481 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 481, 1 Phil. 481

THE STATE v. ARCHIBALD KEARZEY.

Applications for a new trial because a verdict is against the weight of the evidence, are addressed to the discretion of the judge below, and therefore cannot be reviewed by the Supreme Court.

Petit larceny might at common law be punished by imprisonment.

It is no ground for a motion to quash an indictment, or to arrest judgment, that the defendant was convicted upon an indictment found by a grand jury in 1863, while the rightful State government was suspended.

(State v. Sears, ante, 146; cited and approved.)

Larceny, tried before Mitchell J., at Fall Term 1867 of the Superior Court of Granville.

The indictment was found at May Term 1863 of Granville County Court, and at May Term 1867 of the same court the defendant was convicted. Having appealed from the judgment of that court, a motion was made before his Honor to quash the proceedings, for want of jurisdiction in the court in which the indictment was found, which motion was not allowed.

The evidence showed that the defendant, under a search warrant for other stolen goods, had been found in possession of certain hubs made of walnut, which belonged to one Crabtree* He at. the time accounted for their possession by saying he had bought them of one Grissom, a wagon maker, who it was afterwards shown had left the country before some of the hubs had been made. At the Term of the court at which the bill was found the defendant, not then knowing of the prosecution, went to Crabtree and proposed to settle the matter about the hubs, saying that he had bought them from a wagoner whose name he did not know, and that if he got out of that scrape he would take care whom he dealt with next time. Other evidence given in is not material here.

The jury having convicted the defendant, his counsel moved to arrest judgment, because :

1. The alleged larceny could not be punished at co mmon law; inasmuch as Sickles’ Order No. 10 abolishes all existing punishment for larceny of values under $25, except the imprisonment there specified, and that imprisonment cannot be awarded because the offence was committed before the order was made;

2. Because the County Court of Granville had no criminal jurisdiction when the bill of indictment was found.

These motions were overruled, and judgment was pronounced. The defendant appealed.

Ganhoell, for the appellant.

Gen. Sickles’ “Order No. 10” renders this offence dispunishable. Dwar. Stat. 673; Broom’s Max., Leges posteriores, &c.; Davis v. Fail banks, 3 How., 636.

The County Court of Granville at May Term 1863 had no jurisdiction of such cases. Act of 15th March 1866 (Ext. Sess. p. 21); Opinion in Hughes’ case, ante 57; Gen. Canby’s recent Order in case of Henderson Oooper of Granville county.

The ordinance cited in Sears’ case, ante 146, intends that officers who have acted under defacto laws and judgments, shall be protected, and does not mean that such judgments and proceedings shall be a valid basis for further proceedings thereupon to be had now.

The motion to quash was made in apt time, and distinguishes this case from that of Sears.

Atto. Gen., contra,

cited S. v. Sears, ante, T46; Rev. Code, c. 34, s. 26; 4 Bl. 237, 3 Inst. 109 and 218.

Reade, J.

Where there is any evidence, its sufficiency is a question for the jury and not for the judge. After verdict the objection that the verdict is against the weight of the evidence is addressed to the discretion of the judge below, and this court cannot review its exercise.

The first motion in arrest of judgment involves the question whether petit larceny was punishable by imprisonment at common law, or only by whipping.

“The judgment herein was in ancient times ref erred to the discretion of the judge, as in Bracton’s time; in Britton’s time sometimes by the pillory and sometimes by the loss of the ear. But in, and since the reign of Edward III, no persons lost any member for petit larceny, but were sometimes-punished by imprisonment, and sometimes by other penance, as whipping, &c. 3 Inst. 218.”

“The inferior species of petit larceny is only punished by imprisonment or whipping at common law. 4 Black., 237.”

The second ground in arrest of judgment, that the County Court had not jurisdiction of the offence, was fully considered and decided at the last term of this court in State v. Sears, ante 146.

The motion to quash for want of jurisdiction was properly disallowed. State v. Sears, supra.

There is no error.

Let this be certified to the court below that further proceedings may be had according to law.

Per Curiam. There is no error.