State v. . Fagg

Douglas, J. The essential facts are thus set out in the statement of the case: “This was an indictment against the defendant and one Ralph Fortune for an affray, in which a deadly weapon was used. The defendant Fortune submitted to a verdict of guilty. The defendant Eagg pleaded former conviction. It was admitted that he had been tried before a Justice of the Peace, and punished for a simple assault. The evidence on the trial before the Superior Court, as before the Justice, showed that the defendant Eagg had used no deadly weapon, and inflicted no serious injury, though Fortune, who submitted, had. The defendant requested his Honor to charge the jury, under the admission and evidence, to return a verdict of 'not guilty.’ His Honor refused to so charge the jury, and the defendant excepted. His Honor, among *611 other things, charged the jury that the defendant had failed to sustain the plea of former conviction.” This case presents the single point whether a plea of former conviction can be sustained where the defendant has been previously convicted before a Justice of the Peace of a simple assault in an affray where another defendant did use a deadly weapon. This point has been decided in State v. Albertson, 113 N. C., 633; and we see no good reason to reverse that decision. Sec. 892 of The Code was then in force, and, while not alluded to in the opinion, was construed by necessary implication. Whatever difficulties the Court then had, or we might now have if it were an open question, in arriving at such a conclusion, were apparently solved; and for the six years since intervening its decision, as far as we are aware, has never been questioned. It has thus become firmly established and should not be disturbed except for the gravest reasons. Of course, when in the deliberate opinion of any court, any construction is subversive of the principles of natural justice, or of constitutional guarantees, in other words, where its continued enforcement would violate the conscience of the court, precedent must give way to conviction. But in the present case no such condition exist. The construction is in favor of the liberty of the citizen, and, as far as we can see, offers no obstruction to the proper administration of the law. The offense is slight, and its punishment is strictly limited by-statute, a limitation applying equally to the Superior Court as well as to the Justice of the Peace. This defendant has already been punished, and the allowance of his plea of former conviction can not interfere with the proper punishment of his co-defendant. The vei’dict of guilty will be set aside. Error.