State v. . Black

Supreme Court of North Carolina

State v. . Black

64 S.E. 778, 150 N.C. 866, 1909 N.C. LEXIS 174

CourtSupreme Court of North Carolina

DecidedMay 21, 1909

StatusPublished

Cited by4 cases

This text of 64 S.E. 778 (State v. . Black) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Black, 64 S.E. 778, 150 N.C. 866, 1909 N.C. LEXIS 174 (N.C. 1909).

Pincite

Opinion

Clark, C. J.

The defendant was convicted in the police court of Asheville for keeping a disorderly house, and appealed to the Superior Court. Upon a trial de novo he was found guilty by a jury and sentenced to twenty-two months’ imprisonment. He presses but one ground of appeal in his brief, which is that, by the charter of Asheville (Private Laws 1901, ch. 100, sec. 77), keeping a disorderly house in that city is a misdemeanor, punishable by a fine not exceeding fifty dollars or imprisonment not exceeding thirty days.

If this- exception were well taken, the defendant would not be entitled to a new trial, but to be remanded for resentence in *867 conformity to law. State v. Lawrence, 81 N. C., 522; State v. Crowell, 116 N. C., 1052; State v. Austin, 121 N. C., 622.

If tbis.bad been an ordinance of tbe city it would be void, because it covers tbe same acts as are a misdemeanor at common law and punishable under tbe criminal law of tbe State. State v. McCoy (from Asheville), 116 N. C., 1059, and cases there cited.

Tbe offense for which tbe defendant was tried is an offense at common law and has not been repealed. Tbe charter of Ashe-ville (section 77 of chapter 100, Private Laws 1901) does not purport to repeal it. Its object was evidently to make it an offense against the city, in addition to being an offense against the general law of the State. Doubtless the idea was that it might thus be dealt with more promptly and efficiently than in the Superior Court, where the jurisdiction then lay. But there are no words in said section 77 indicating an intention to repeal it as a common-law offense within the limits of Asheville. It remained, as before, a common-law offense throughout the State. The defendant was tried and convicted under the common law. The above section (77), if valid, was not pleaded below or relied on either by the State or the defendant, and its validity is not presented.

No Error.

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Clark, C. J.

The defendant was convicted in the police court of Asheville for keeping a disorderly house, and appealed to the Superior Court. Upon a trial de novo he was found guilty by a jury and sentenced to twenty-two months’ imprisonment. He presses but one ground of appeal in his brief, which is that, by the charter of Asheville (Private Laws 1901, ch. 100, sec. 77), keeping a disorderly house in that city is a misdemeanor, punishable by a fine not exceeding fifty dollars or imprisonment not exceeding thirty days.

If this- exception were well taken, the defendant would not be entitled to a new trial, but to be remanded for resentence in *867 conformity to law. State v. Lawrence, 81 N. C., 522; State v. Crowell, 116 N. C., 1052; State v. Austin, 121 N. C., 622.

If tbis.bad been an ordinance of tbe city it would be void, because it covers tbe same acts as are a misdemeanor at common law and punishable under tbe criminal law of tbe State. State v. McCoy (from Asheville), 116 N. C., 1059, and cases there cited.

Tbe offense for which tbe defendant was tried is an offense at common law and has not been repealed. Tbe charter of Ashe-ville (section 77 of chapter 100, Private Laws 1901) does not purport to repeal it. Its object was evidently to make it an offense against the city, in addition to being an offense against the general law of the State. Doubtless the idea was that it might thus be dealt with more promptly and efficiently than in the Superior Court, where the jurisdiction then lay. But there are no words in said section 77 indicating an intention to repeal it as a common-law offense within the limits of Asheville. It remained, as before, a common-law offense throughout the State. The defendant was tried and convicted under the common law. The above section (77), if valid, was not pleaded below or relied on either by the State or the defendant, and its validity is not presented.

No Error.

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Bluebook (online)

64 S.E. 778, 150 N.C. 866, 1909 N.C. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-black-nc-1909.

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