Curtis and Watauga County v. . Miller

46 N.C. 553

• Court: Supreme Court of North Carolina
• Decided: August 5, 1854
• Status: Published

Opinion

Pearson, J.

The warrant was for a penalty imposed for the offence of fornication, by the 119th chapter, section seventh, Revised Statutes, entitled “Vice and Immorality,” “if any persons commit fornication, upon due conviction, each of them shall forfeit and pay $2.50 for each and every such offence, to be recovered and applied to the same use as the fines in this act.” The defence was, that the information was not made within ten days after the commission of the offence. His Honor was of opinion that the information might be made after ten days. There is error.

It is admitted, that in regard to the use to which the penalty is to be applied, this section has reference to the previous sections ; but it is insisted, that there is no such reference in regard to the manner in which the penalty is to be recovered. We think it clear, that a reference is made to the previous sections, both in regard to the manner in which the penalty is to be recovered, and the use to which it is to be applied: if so, according to the 5th section, the information must be made within ten days after the offence is committed. Rut suppose there is no such reference in regard to the manner in which the penalty is to be recovered, then there is no provision made for the recovery of the penalty, and the plaintiff has no authority to sue for it as common informer: so,, quctcumque via, take it either way, he is not entitled to recover. There must be a venire de novo.

Judgment reversed.