Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-10-28
OPINION OF TIE JUDGE.


ry term, $780, OF the Special Court OF the City Of
Wilmington, he duly indicted. arranged
tried and convicted OF an assault and battery of
an aggravated character, the indictment charg-
ing the use Of 81 deadly Wea pm, though not
charging felonioas intcHt. The alleged ground
of connpa int is that the sentence of tho Court
being five years imprs 0nme Mt in the State pris.
on, is al excess OF its jurisdiction in the nl0ae
and djrectj12a Of it's punishment.
after carefully examining the sources from
which the special Court Of the City Of Whining
ton derives rs authority, ave come to tho
conclusion That the complaint Of the petitioner
is v ell founded.
While the Constitution does not erpressIu limit
the authority to punish, grated TO the Special
Courts, in so many words, as it does in regard
to Justices OF the Peace, yet it. would seem to do
go by implication.
o. Article XL of the Constitution, relating
to Punishplents, Penal Institutions, &c, after
enurIeratinS various high crimes and felonies
which it authorizes to DO punishable with death
-hould ths General Assembly so enact, proceeds
! % provide for the erection OF States Prison.
or PenltentiaTy. 1t then proceeds TO authorize
the construction of Houses OF Correction,
where Migrants and persons guilty of misde
meanors sh&N be restrained aud usefuly EN-
ployed " Hsnce I infer that while Houses Of
| Correction may be provided for the reformation
| Of persons found guilty OF misdemeanors, that
state Pri5ons are intended for conVicts OF high
| er grades.
| % Article ", section 10, provides for the
! establishment Il Special Courts for the trial of
mis- deme anora in cities and towns where neces-
| sary. 1t would be inoongruous to limit the IN.
| rsdiction to tho trial Of misdemeanors and at
1
| unlimited. If q misdemeanOr may be punished
as felony, why distinguish the offences?
u Section Is of article ", grants to the Eu-
perlor Court exclusive original jurisdiction of
all criminal acti ms in which the punishment may
exceed fine of fifty dollars or Imprisonment fol.
one month" These words. taken in connection
with section 10, just referred to- eeerns to
lean to the special Courts power to punish mis-
Geme2nors by fine, not exceeding fifty dollars,
which is the criminal Jurisdiction Of Justice OF
| the Peace.
The act of 1lth August, 1858, which establishes
! Special Courts for the cities Of Wilmington and
Newbern, and which, far as Wilmington ia
concerned, was in force in January 1870, follows
the provisions OF tie Constitution by comforting
the city limits. No penalties are fixed by the act
hence infer the punishments left to the die
cretl0n OF the Court, subject to the foregoing
limitations, which think plainly implied in
| the Constitution.
Il is true that the Act of 10th April, 1889, en-
titled, SAN Act in relation to Punishment" after
sthxing the penalties to certain other high
| crimes, prescribes. in Section z, that an assault
| With any deadly weapon, upon the person OF
another with intent to injure, without intent to
| Kill such person. shall be punished, upon con-
viction, by imprisonment in the State Prison
not exceeding five years. Of course, the corvic-
ton referred to, must be before a court of com
petent jurisdiction. 1t is to be remarked tn
the petitioner was not indicted against tue form
| OF the statute, and SO was not convicted under
| II. Ii the indictment had been so framed and a
conV!ctlon had under it, the imposition Of the
Court Of the Statutory penalty, would not have
Hupplieu Inc oeIect or want OF Jurisdiction.
In the present case, no objection was raised to
the jurisdiction of the City Court, so far as the
trial was concerned. In fact. none could have
been well N ade, for the petitioner as we have
seen, was not indicted, under the statute, for a.
| high crime, but for misdemeanor at common
| law, which the City Court was competent 70 try.
The error consisted in borrowing the penalty
from the Statutory offence and applying it to the
misdenaeanor.
Upon the whole, 1 am of tho opinion, that the
Special Court OF the city of Wilmington If it had
Jurisdiction to try the ofense charged in the in
| dictment, could only imprison. upon conviction,
to the extent of one month. AS that period has
long since elapsed, think the petitioner is en-
titled to relief against any further detention in
custody.
JUDGMENT OF THE COURT:
1t Ia ordered by this Court that the petitioner
Jacob Richardson, be discharged from the Gus
| tody OF the sheriff of New Hanover county to
go where's or he will; and judgment is rendered
against the petitioner for the costs of this ap-
plication, be taxed by the Clerk of the Court.
(Signed) RALPH P. BUXTON.
Judge, &c.