{
  "id": 8683763,
  "name": "STATE v. JORDAN McNEILL",
  "name_abbreviation": "State v. McNeill",
  "decision_date": "1876-06",
  "docket_number": "",
  "first_page": "15",
  "last_page": "17",
  "citations": [
    {
      "type": "official",
      "cite": "75 N.C. 15"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T18:17:21.962704+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. JORDAN McNEILL."
    ],
    "opinions": [
      {
        "text": "Bynum, J.\nThis indictment contains three counts; the first is for an assault with a deadly weapon, with intent to \u2022Mil; the second for an assault with a deadly weapon, with intent to injure; and the third is for a common assault and battery.\nThere was a general verdict of guilty, without the verdict specifying upon which count the finding was made. The question is, whether upon this verdict and for the offences charged in the indictment, the Court can sentence the defendant to imprisonment in the penitentiary. We think' it cannot.\nSections 7 and 8, chap. 167 of -the Acts of 1868-\u20199, prescrib-mg the punishment for the offences set out in the first and second counts, are repealed by the Act of 1870-71. chap. 43, sec. 1, and by the second section of the latter Act, it is enacted that \u201c In all cases of assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the Court.\u201d So that now, all assaults of whatever character, are put upon the same footing and are subject to the same character of punishment. So it is not material to enquire whether the verdict should have been rendered upon any particular count. The question, then, is narrowed down to this: Do the terms '\u2022 fin\u00a9 and imprisonment at the discretion of the Court,\u201d confer the power to imprison in the penitentiary ? We think not, clearly.\nAll punishments in this State, are mow prescribed and regulated by statute, or when not so prescribed, are punishable as misdemeaners at common law; unless the crimes are infamous or done in secrecy and malice, or done with deceit and intent to defraud; when they may be punished as prescribed in sea 29 of chap. 32, Bat. Rev., (see sec. 108,) that is, by imprisonment in the State\u2019s prison or county jail. The assaults charged in the indictment, not being infamous crimes, or done in secrecy and malice or with deceit and intent to\u2019 defraud, cannot be punished in the State\u2019s prison, under section 108; and not having been punishable with whipping or other corporal punishment, prior to the adoption of the present Constitution, cannot be punished by imprisonment in the penitentiary under section 29, chap. 32 of Battle\u2019s Revisal; and finally, the penitentiary, being a modern device, unknown to the common law, punishment by imprisonment in the penitentiary, could, not be imposed by ^he \u25a0 common law. The conclusion is, that misdemeanors, made punishable as at common law, or punishable by \u201c fine or imprisonment or both \u201d which is our case, can be punished only by fine or imprisonment in the county jail, one or both. No other reasonable construction can be put upon sections-29,108 and 111, chap. 32, Bat. Rev., collated and construed-together.\nIn further illustration of this construction, it will be seen throughout chap. 32 on \u201c Crimes and Punishments,\u201d that wherever imprisonment in the penitentiary is annexed as the punishment of the offence, the crime is either \u201c infamous,, or done in secrecy and malice, or done with deceit and in\u00a1tent to defraud.\u201d On the other hand, where the punishment prescribed \u201c is fine or imprisonment,\u201d nowhere will ft be found that the imprisonment is described to be-in. the-State\u2019s prison or penitentiary. All offences,.therefore, which, are misdemeanors at common law or made such by statute,, where no punishment is specified, or' prescribed, to - be as at, common law, or by fine or imprisonment, can be punished by imprisonment in the common jail only, unless the offen-ces. are infamous, done in secrecy and malice, &e.,. as prescribed in sections 108 and 29 as before cited. This rule covers- our case. In re Schenck, 74 N. C.,. 607.\nThe exception taken to the admission of the previous declarations of the prosecutrix, was not pressed in this Court; and. is not tenable. The witness was impeached in her cross examination, as having made contradictory statements about the occurrence, and her previous declarations consistent with her evidence, were admissible in corroboration. There is error. This will be certified to the end that the Court below may proceed to judgment according to law.\nPee. Cueiam. Judgment accordingly.",
        "type": "majority",
        "author": "Bynum, J."
      }
    ],
    "attorneys": [
      "Attorney General Hargrove and Pemberton, for the State.",
      "Hdll McKay, for the prisoner."
    ],
    "corrections": "",
    "head_matter": "STATE v. JORDAN McNEILL.\nMisdemeanors made punishable as at common law, or punishable by fine- or imprisonment, or both, can he punished by fine, .or imprisonment in the county jail, or both: Henee, a general verdict of \u201cguilty\u201d upon an indictment containing three counts, to wit, one for an assault with a deadly weapon, with intent to kill; another for a similar assault, with intent to injure; and a third for a common assault and battery, will not, since the Act of 1870-71, chap. 43, justify imprisonment in the penitentiary.\nFine and imprisonment at the discretion of the Court, does not confer the power to imprison in the penitentiary.\n(In re Seheneh, 74 N. C. Rep. 607, cited and approved )\n, INDICTMENT for an Assault, tried before Buxton, J., at the. Spring Term, 1876, of Moore Superior Court.\nThe facts necessary to an understanding of the case as decided, are stated in the opinion of the Court.\n. There ivas a verdict of \u201c guilty,\u201d and judgment thereupon. The defendant appealed.\nAttorney General Hargrove and Pemberton, for the State.\nHdll McKay, for the prisoner."
  },
  "file_name": "0015-01",
  "first_page_order": 23,
  "last_page_order": 25
}