{
  "id": 8658137,
  "name": "STATE v. SIMONS",
  "name_abbreviation": "State v. Simons",
  "decision_date": "1920-05-05",
  "docket_number": "",
  "first_page": "700",
  "last_page": "703",
  "citations": [
    {
      "type": "official",
      "cite": "179 N.C. 700"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "178 N. C., 745",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "173 N. C., 806",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "129 N. C., 63",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8658840
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      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "160 N. C., 359",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "51 N. C., 469",
      "category": "reporters:state",
      "reporter": "N.C.",
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        11278296
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      "opinion_index": 0,
      "case_paths": [
        "/nc/51/0469-01"
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    {
      "cite": "48 N. C., 105",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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  "last_updated": "2023-07-14T16:12:15.491038+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. SIMONS."
    ],
    "opinions": [
      {
        "text": "Allen, J.\n\u201cOne of tbe purposes of tbe writ of certiorari is to answer as a substitute for an appeal, . . . but where an appeal is pot prayed for, tbe certiorari is not a matter of course, and tbe Court will exercise discretion in regard to tbe application.\u201d Bledsoe v. Snow, 48 N. C., 105; McConnell v. Caldwell, 51 N. C., 469.\nTbe application should be made \u201cat tbe term to which tbe appeal ought to have been taken,\u201d \u201cwithout any unreasonable delay, and tbat any such delay after tbe earliest moment in tbe party\u2019s power to make tbe application must be satisfactorily accounted for.\u201d Todd v. Mackie, 160 N. C., 359.\nIt is also held in Mitchell v. Baker, 129 N. C., 63, tbat tbe petition for tbe certiorari should be made \u201cat least at tbe call of tbe district\u201d to which tbe appeal should have been taken.\nApplying these principles, tbe petition must be denied, because it appears tbat it was not filed until after tbe appeals from tbe county of Anson at tbis term were beard, and there is no allegation which shows tbat tbe petitioner was prevented from taking an appeal, or was misled, nor is there any legal excuse given for failing to file bis petition earlier.\nIf ignorance of tbe rules of practice or inability to employ counsel could avail there would be few cases in which a petition could not be applied for.\nAgain, while the' merits are not determined upon a petition for a certiorari, it appears from the record that the application is made upon the ground that the petitioner swore falsely against another charged with the same crime, and that his claim now made that he is- innocent has no foundation unless it is found that he now swears to the truth when he says in his petition that he has heretofore committed perjury in regard to the same fact.\nIf, however, these objections were not fatal to the application, it was held in S. v. Bryson, 173 N. C., 806, substantially overruling an earlier case, that the crime of accessory before the fact is included in the charge of the principal crime, within the meaning of sec. 3269 of the Revisal, and if so, the court could accept the plea of the defendant under the bill of indictment charging the crime of arson, and the judgment pronounced thereon is legal.\nThe petition must be denied.\nPetition denied.",
        "type": "majority",
        "author": "Allen, J."
      }
    ],
    "attorneys": [
      "A. A. Tarlton and H. P. Taylor for 'petitioner.",
      "Attorney-General Manning and Assistant Attorney-General Nash for the State."
    ],
    "corrections": "",
    "head_matter": "STATE v. SIMONS.\n(Filed 5 May, 1920.)\n1. Appeal and Error \u2014 Certiorari\u2014Court\u2019s Discretion.\nA writ of certiorari as a substitute for an appeal is not a matter of course when tbe appeal has not been prayed for, but within the exercise of the discretion of the court in passing upon the application.\n2. Same \u2014 When Taken.\nA petition for a certiorari as a substitute for an appeal to the Supreme Court should be made \u201cat least at the call of the district\u201d to which the appeal should have been taken, and it must appear that the petitioner was prevented from taking the appeal or was misled, or that he had a legal excuse for failing to file his petition earlier; and ignorance of the rules of practice or inability to employ counsel is insufficient.\nS. Appeal and Error \u2014 Certiorari\u2014Merits.\nThe merits of the case are not passed upon on an application in the Supreme Court for a certiorari.\n4. Same \u2014 Criminal\u2014Accessory Before the Fact \u2014 Statutes.\nThe petitioner for a certiorari as a substitute for an appeal was charged with arson, and upon the trial of another charged with the same offense, find as an accessory before the fact, he testified of his own free will, after being warned and without inducement, that he had burned the dwelling, being induced thereto by the prisoner then being tried; and on his own trial, that he had not done the burning, etc.: Semble, this conflict of testimony involved a finding of fact that his first testimony was perjured; and further, the charge of accessory before the fact includes that of the principal crime, Rev., 3269, and the court could accept the plea of defendant under the charge of arson; and, therefore, no error of law would be-found regarding the case as if on appeal, upon its merits.\nPbtitioN for a writ of certiorari as a substitute for an appeal.\nA true bill of indictment was returned against the petitioner at April Term, 1919, of Anson, charging him with the crime of arson.\nAt the same term of court a true bill was returned against one Jim Eeid (S. v. Reid, 178 N. 0., 745), charging him in one count with the-crime of arson and in another with being accessory before the fact te the crime of arson.\nEeid was tried at said term, and the petitioner herein was the principal witness against him, and testified, among other things;\n\u201cI was living at Mr. N. P. Liles\u2019 place. John McLendon was living-on Mr. Tyler Bennett\u2019s place. I had a talk here in town with Jim Eeid in regard to burning this house. Jim said he wanted to get me to burn it.\n\u201cThe first time I told him I couldn\u2019t do anything like that. That was-a few days before the 18th, and on the 18th he got after me again down here at this barber shop of Mr. Whit Hagins. He got after me again,, and said it would be all right; the house was insured and Mr. Bennett wouldn\u2019t lose anything, and said he would give me $150 if I would burn it. And I burnt the house that night.\n'\u2018When they had the case up before the justice of the peace I voluntarily went up there and told it, didn\u2019t have any lawyer. Just went on the stand and told it, I wanted to tell it anyway. Mr. Eoark was present. I heard his Honor say I need not tell anything against myself. No inducements have been given me, and no promises made me. L don\u2019t understand anything about why I am not being tried.\n\u201cI don\u2019t know whether I am interested in this trial or not. I just; told the truth is why I am telling it.\u201d\nEeid was convicted on the second count in the indictment, and was-sentenced to life imprisonment in the penitentiary, from which judgment, he appealed, and the case is reported in 178 N. C., 745.\nAt November Term, 1919, of said court, the petitioner tendered a plea of guilty of accessory before the fact to the bill of indictment charging-him with arson, which plea was accepted by the State, and the petitioner was sentenced to the State\u2019s prison for life.\nNo appeal was taken from said judgment, and no notice of appeal given.\nAppeals from tbe county of Anson were beard during tbis term of tbe Supreme Court, during tbe week beginning 13 April, an\u00bf tbis petition for a certiorari was not filed until 20 April, 1920.\n\u25a0 Tbe petition is upon tbe ground tbat tbe bill of indictment charging arson does not include tbe crime of being accessory before tbe fact to tbe crime of arson, and tbat therefore bis imprisonment is unlawful.\nTbe petitioner alleges tbat be is innocent of tbe crime, and tbat be swore falsely'on tbe trial of Jim Reid; tbat Reid did not procure him to burn tbe bouse, and tbat be bad nothing to do with it and knew nothing about it.\nHe also alleges as an excuse for not taking an appeal tbat be was carried to Raleigh within two or three days after judgment was procured against him and has bad no opportunity to give notice of appeal, and would not have known bow to give such notice; tbat be has bad no opportunity to consult with counsel, and because of poverty has been unable to protect bis rights.\nA. A. Tarlton and H. P. Taylor for 'petitioner.\nAttorney-General Manning and Assistant Attorney-General Nash for the State."
  },
  "file_name": "0700-02",
  "first_page_order": 756,
  "last_page_order": 759
}