NANCE v. C. C. RAILWAY CO.

JOSEPH J. NANCE v. THE CAROLINA CENTRAL RAILWAY COMPANY.

Justices of the Peace have no jurisdiction of actions founded in tort. (Ch. 16, § 10, Bat. Rev. is improvidently brought forward from the Revised Code.)

(Bullinger v. Marshall, 70 N. C. 520; and Heptinstall v. Rue, 75 N. C. 78, cited and approved.)

CIVIL ACTION brought in a Justice's Court in the county of BLADEN, in which the plaintiff recovered of defendant company, the value of a cow which was killed by an employee of the company, while running an engine and cars on its road. The defendant appealed to the Superior Court of said county and the judgment of the Justice was affirmed at Chambers, on September 8th, 1875, by McKoy, J.

From the judgment of His Honor, the defendant appealed to the Supreme Court.

Messrs. Lyon & Lyon, and 7. H. Sutton, for the plaintiff. Mr. W. F. French, for the defendant.

BYNUM, J. There was some dispute between the counsel, whether a supplemental statement at the foot of the case as stated and signed by the counsel for plaintiff and defendant, was a part of the case for this Court. The supplemental statement is not signed by either counsel and, therefore, unless it had been agreed to be a part of the case, we can decide the case only on the signed statement and the record.

The action was instituted, doubtless, under the Rev. Code, ch. 17, § 7, which was improvidently brought forward in Bat. Rev. ch. 16, § 10, as the existing law, and thus misled the plaintiff. But, by the Const., Art. IV. § 33, Justices of

STATE v. BELK

the Peace are excluded from all jurisdiction of actions founded in tort. This action belonging to that class, the Justice had no jurisdiction. Bullinger v. Marshall, 70 N. C. 520; Heptinstall v. Rue, 75 N. C. 78. It can be a matter of little consequence to the plaintiff, whether the appeal is dismissed for want of a case stated in due time, as is insisted upon by him, or whether the judgment is reversed upon the question of jurisdiction, as is insisted upon by the defendant. If not appealed from, even the judgment of the Justice was still a nullity and could not have been enforced against the defendant.

1. In an indictment charging a prisoner with an assault on a peace officer, the official character of the assailed need not be averred.

2. The violation: of a Town ordinance, even in the presence of a policeman, does not necessarily give him a right to arrest the offender.

3. In such cases, if the policeman is not known to be an officer, resistance without the use of excessive violence is justifiable

(The practice in regard to Special Verdicts discussed and explained by Mr. Justice Rodman.)

(State v. Will, 1 D. & B., 121; State v. Garrett, 1 Winst. 144; State v. Briggs, 3 Ire., 357; State v. Kirby, 2 Ire., 201; State v. Bryant, 65 N. C., 327; State v. Stalcup, 2 Ire., 50, cited and approved.)

INDICTMENT, for assault and battery, tried at Fall Term, 1876, of UNION Superior Court, before Furches J.

STATE BELK.

The indictment was drawn in the usual form and charged. the defendant with an assault on one Weill. There was evidence tending to show that Weill was a policeman in the town of Monroe, acting under its corporate authority; and that the defendant was violating the laws of the town at the time the difficulty occurred, and resisted the policeman who arrested him.

The Solicitor for the State contended, that any resistance on the part of the defendant, would be an assault on the officer; but the Court being of a different opinion, intimated that as the indictment did not set out the office or authority of Weill, the defendant and Weill should be put on an equal footing.

Upon this intimation, certain questions were submitted to the jury, and upon their findings in reply as in a special verdict, the substance of which is stated in the opinion, the Court gave judgment for the defendant and the Solicitor for the State appealed.

Attorney General, for the State.
No counsel for defendant.

RODMAN, J. The Judge seems to have thought that, because the indictment was in the usual form for an assault. and battery and did not show that Weill (the person assaulted). was a police officer, and that he had arrested the defendant by virtue or under color of his office, the jury were not at liberty to consider those facts as bearing on the question of the defendant's guilt.

In this we think the Judge was mistaken. If there were any statute which made an assault on a policeman an offence of a different grade from one on an unofficial person, as an English statute did in respect to an assault on a privy counsellor when in the execution of his office (1 East, P. C., ch. VII, § 2) or which imposed a greater punishment for such an

STATE v. BELK.

assault, then, in order to bring the offender within the statute, it would be necessary to charge that the person assailed was a policeman. But there is no such statute. A Judge might consider an assault on a peace officer engaged in discharging his lawful duty, as deserving a severer punishment by reason of the official character of the assailed, just as he might consider an assault on a woman or on a feeble man, more heinous by reason of their weakness. But in all these cases the character of the offence and the form of the indictment are the

same.

This is established by many precedents and there is none. to the contrary. If an officer is killed in making an arrest, the indictment is in the usual form for murder, and does not state the official character of the deceased. And so, if the party arrested, resists without killing. 1 East, P. C., 294,. ch. 6, § 2; State v. Will, 1 D. & B., 121; State v. Garrett, 1 Winst., 144; State v. Briggs, 3 Ire., 357.

It is true that the law applicable to the case of an assault upon a constable or other peace officer, while lawfully making an arrest, is not the same as that which applies, when the party assailed is an unofficial person acting without authority. But all the facts presenting the relations between the parties and calling for an application of the appropriate principles of law, may be brought out in evidence and submitted to the jury under proper instructions from the Court.

Instead of submitting the case to the jury on the general issue of not guilty and with instructions as to the law appropriate to the evidence, the Judge submitted certain questions to the jury and these, with their findings in reply, are regarded by the Judge and sent up to us, as a special verdict.

cases.

We think this practice is one not to be advised in criminal It will be found inconvenient and moreover, it tends to impair the undoubted right of juries to find general verdicts, or at least to discourage its exercise.

STATE v. BELK.

A special verdict is properly in the form of a statement of facts, with a conclusion leaving it to the Court, to enter a verdict of guilty or not guilty, according to its judgment on the law. The answers of the jury in this case when put in that form would read thus, "Weill was a policeman in the town of Monroe. He arrested the defendant for violating an ordinance of the town and struck the defendant with a stick or other weapon. Afterwards the defendant violently shoved Weill." This is all that is found.

Upon this special verdict the Solicitor for the State moved the Judge for judgment against the defendant, which the Judge refused to give and ordered the defendant to be discharged, without however entering a verdict of acquittal, as in his view of the case he should have done, in order to protect the defendant from a second prosecution. From this order of discharge the Solicitor appealed to this Court,

Upon this scanty and evidently imperfect statement of the facts of the occurrence in the supposed special verdict, we are required to determine on the guilt of the defendant.

It is familiar law, that nothing can be added to a special verdict by inference. If it omits to set forth any fact essential to constitute the offence charged, it is defective and the defendant must be held acquitted. In like manner if it shows a defence, the defendant must be acquitted.

In considering this special verdict, it is seen to omit to find that the assault was committed in Union county and in the town to which the policeman's jurisdiction was limited. We pass this over, however, as the objection was not made.

No fact is stated from which it appears that the policeman had authority to arrest the defendant. A A peace officer may arrest without warrant upon suspicion of felony and for a breach of the peace committed in his presence. And Mr. Chitty adds, "for some other misdemeanors." But these others we conceive are only those which some statute gives