Opinion · Nclaw North Carolina

STATE v. FISH, 26 N.C. 219 (1844)

26 N.C. 219

Type
Opinion
Court
Nclaw North Carolina
Jurisdiction
Nclaw
Date
1844-01-01
Topic
general

STATE v. FISH, 26 N.C. 219 (1844) STATE v. ALEXANDER FISH.Supreme Court of North Carolina (June Term, 1844.) By an act of Assembly, passed in 1842, a part of the county of Burke and a part of the county of Rutherford were constituted a new county, by the name of McDowell; and by a supplemental act, jurisdiction of all criminal offenses committed in that part of McDowell taken from Burke was given to the Superior Court of Burke. But an indictment for a criminal offense, alleging it to have been committed in Burke County, cannot be supported by evidence showing the offense to have been committed in McDowell after the establishment of the latter county. The jurisdiction of the offense is given to the Superior Court of Burke, but its locality must be truly averred in the indictment.

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STATEv. FISH,26 N.C. 219(1844)
STATE v. ALEXANDER FISH.
Supreme Court of North Carolina
(June Term, 1844.)
By an act of Assembly, passed in 1842, a part of the county of Burke and a part of the county of Rutherford were constituted a new county, by the name of McDowell; and by a supplemental act, jurisdiction of all criminal offenses committed in that part of McDowell taken from Burke was given to the Superior Court of Burke. But an indictment for a criminal offense, alleging it to have been committed in Burke County, cannot be supported by evidence showing the offense to have been committed in McDowell after the establishment of the latter county. Thejurisdictionof the offense is given to the Superior Court of Burke, but its locality must be truly averred in the indictment.
APPEAL from BURKE, Spring Term, 1844,Settle, J.
The indictment in this case was found in Burke Superior Court at Fall Term, 1843, and charged that the defendant "being an evil-disposed person and wickedly designing and intending to cheat one Joseph Curtis, on 15 May, 1843, with force and arms, in the county aforesaid, did knowingly and designedly, by means of a false token, to-wit, by means (220) of a counterfeit 10-cent piece, which the said Alexander well knew to be counterfeit, then and there obtain from the said Joseph Curtis two pieces of gingerbread, with intent to cheat and defraud the said Joseph Curtis, against the form of the statute in such cases made and provided, and against the peace and dignity of the State." Another count, substantially the same, was added. On the trial, at the instance of the court, the jury found specially that the defendant, in the county of McDowell, formerly a part of the county of Burke, knowingly and designedly, by means of the false token charged in the bill of indictment, did cheat and defraud Joseph Curtis, named in the bill of indictment, of the goods, to-wit, the gingerbread named in the said bill, at the timePage 171named in the said bill. Upon which special verdict it was adjudged by the court that the defendant, Alexander Fish, was not guilty.

From which judgment the Solicitor for the State prayed an appeal to the Supreme Court, which was granted.
Attorney General for the State.W. J. Alexander and Hoke for defendant.
RUFFIN, C. J.
By the act of 1842, chap. 10, the county of McDowell was established, consisting of territory before forming parts of Rutherford and Burke counties. By an act (chapter 11) supplemental to the former, a County Court is established for the new county, but not a Superior Court; and by section 6 it is enacted that all criminal offenses committed in that part of McDowell taken from Burke which are cognizable in the Superior Court shall be and continue under the jurisdiction of the Superior Court of Burke.

The present is an indictment found in the Superior Court of Burke, for cheating by means of a false token, and it lays the offense to have been committed on 15 May in the county of Burke. On the trial it appeared that the act was perpetrated on the day mentioned, but that it was not in Burke, but in that part of McDowell which was taken from Burke. By the direction of his Honor, these facts were found in a special verdict, and thereon judgment was given for the (221) defendant, from which an appeal was taken by the State.

The opinion of this Court concurs with that of his Honor. An indictment states the place where the offense was committed, to enable the court to see that it is within its jurisdiction. This purpose necessarily requires that the place should be truly stated. The jurisdiction of crimes is local, and generally the Superior Court of a particular county is restricted to offenses committed within that county. When a new county is created, crimes thereafter committed therein are not, therefore, cognizable in the court of any other county, unless the statute should confer such new jurisdiction. But it is undoubtedly competent to the Legislature to curtail or enlarge the jurisdiction of courts; and in this case the jurisdiction of the Superior Court of Burke is no longer confined to offenses committed within Burke, but extended to such as may be committed within a certain part of McDowell. That, however, is not because the part of Burke which was taken off and now forms a part of McDowell remains for this purpose a part of Burke; for, to all intents, Burke and McDowell are two distinct counties. But it is because the statute says that the Superior Court of Burke shall take cognizance, not only of offenses committed in Burke, but also of those committed in McDowell, thus giving that court jurisdiction over two counties insteadPage 172of one. In alleging the place, the indictment ought to be according to the fact, as the offense may have been in the one county or the other. Both counties are on the same footing precisely, and it is not more proper to state in the indictment that an act done in McDowell was committed in Burke than,vice versa, to lay one committed in Burke as having been committed in McDowell. The court has jurisdiction over both counties, but the offense cannot be laid in both, but in one of them in particular. If it be laid in one, when it was in the other, the act alleged and that proved are different, and the accused must be (222) acquitted.

PER CURIAM. Affirmed.Cited: S. v. Boon,49 N.C. 465.