Where a bill of indictment for an assault and battery was found in the Superior Court against the defendant, and pending the same after his knowledge thereof, and before his arrest, he procured himself to be indicted for the same offense in the county court, and there voluntarily submitted and was fined: Held, that the conviction in the county court was a good defense to the indictment in the Superior Court.
(The case of S. v. Tisdale, 19 N.C. 159, cited and approved.)
To this replication the defendants demurred; and his Honor gave judgment sustaining the demurrer, from which the solicitor for the State prayed and obtained an appeal to the Supreme Court.
BATTLE, J.
We cannot distinguish the principle which must govern this case from that which was decided by this Court in S. v. Tisdale, 19 N.C. 159. In that case, the defendant pleaded a (210) former conviction for the same offense in the county court. The Attorney-General for the State replied, that before the prosecution commenced in the county court, the present bill was found against the defendant, and that the prosecution had been regularly kept up. To this replication the defendant rejoined that he had no legal notice of the prosecution in the Superior Court, before his conviction in the county court, and to this rejoinder the Attorney-General demurred. The demurrer was overruled and judgment given for the defendant, which was affirmed by this Court.
The only difference between the replication in that case and the present, consists in the allegations in this, that the defendants had knowledge of the bill having been found in the Superior Court, and procured an indictment to be found against them in the county court, and voluntarily submitted thereon, and paid the fine which the court imposed upon them. The replication does not state that the defendants had been arrested upon a capias issued from the Superior Court before they were indicted in the county court, and we must take it that the fact was not so. Their knowledge of the bill having been found in the Superior Court cannot then vary the result. As was said in S. v. Tisdale, "the defendant had no day in the Superior Court — he having neither been arraigned nor even arrested on the bill in that court. Until he had a day in court on that indictment, he was not vexatus thereby, and stood in relation thereto on the same footing as if he had been put without day by a nolle prosequi thereon; in which last case, it is laid down in McNeill's case, 10 N.C. 183, that he would be amenable on another indictment in any court having jurisdiction of the offense." How the other allegation, that he procured an indictment to be found against him in the county court and submitted thereon, can alter the case we cannot imagine. Certainly it is no fraud on the law for a man who has violated it to come forward and voluntarily submit to the judgment of a court having full jurisdiction of the offense. The Legislature, by giving a concurrent jurisdiction to the county and Superior Courts over assaults and batteries, assumes that either, and one not more nor less than the other, will fully exercise its powers and perform its duties thereto. But it is said that persons committing (211) aggravated batteries may and often do, by the means resorted to in this case, manage to escape with a lighter punishment in the county court than would have been imposed in the Superior Court. That may be so; and if it is so, it is an evil which it is the province of another department of the government to redress. The judgment must be affirmed.
PER CURIAM. Judgment accordingly.
Cited: S. v. Swepson, 79 N.C. 640; S. v. Williford, 91 N.C. 529; S. v. Roberts, 98 N.C. 756.