Lenoir County NcArchives Court.....State, V. Justices Of Lenoir County 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:10 pm

Source: Nc Court Reports, Vol 11, 1826
Written: 1826

December Term 1825

STATE v. JUSTICES OF LENOIR COUNTY. 

From Lenoir.

The Justices of a County Court are not obliged, by their own exertions, to 
build and repair jails; they are only bound to use such means for the 
accomplishment of that end as the law prescrines—i. e., to lay a tax, appoint 
commissioners to contract, a treasurer of public buildings, &c.; and for an 
omission of one or all these acts, it seems, they may be indicted jointly as a 
body; but the indictment must charge which of the duties prescribed by the act 
has been neglected; it is not sufficient to charge generally that they 
negligently and unlawfully did permit the jail to go to ruin and decay.

The question in this case arose upon the indictment which was in these words, 
viz.:

The Jurors for the state upon their oath present, that within the (195) county 
of Lenoir there now is, and from time immemorial there hath been, a certain 
common jail, for the purpose of keeping in safe custody offenders and 
prisoners within the same, situate and being in the county of Lenoir, known by 
the name of the jail of Lenoir; and that on the first day of January, in the 
year of our Lord one thousand eight hundred and twenty-five, and continually 
from thence, until the day of taking this inquisition, the said jail hath been 
and still is greatly ruinous, in decay, and out of repair, for want of needful 
and necessary repairing and amending the same, so that offenders and 
prisoners, during such time, could not, nor can they now, be kept and secured 
in safe and secure custody within the said jail, as they ought, and were wont 
to be, and still ought to be, to the great hindrance and obstruction of 
justice; and that (naming the justices) justices of the peace for the county 
of Lenoir, whose duty it is to amend and repair the same, when and so often as 
it shall be necessary, have failed so to do; but negligently and unlawfully 
did permit the said jail to go to ruin and decay, contrary to the act of the 
genera] assembly in such case made and provided, and against the peace and 
dignity of the state.

To this indictment defendants demurred, and the demurrer having been sustained 
below, Mr. Solicitor Miller, for the state, appealed.

Attorney General, for the prosecution. 
Gaston, contra.

Taylor, Chief Justice.—There are some rules relative to indictments, which it 
is indispensable to observe, notwithstanding the relaxation in point of form 
which is introduced by the act of 1811. The indictment must still contain a 
description of the crime, and a statement of the facts by which it is formed, 
so as to identify the accusation; otherwise the grand jury might find a bill 
for one offence, and the defendant be put on his trial in chief for another.

The defendant ought, also, to know what crime he is called upon to answer, and 
the jury should appear to be warranted in their conclusion of "guilty or not 
guilty" upon the premises to be delivered to them. The Court should, also, be 
enabled to see on the record such a specific crime, that they may apply the 
punishment (196) which the law prescribes; and the defendant should be 
protected by the conviction, or acquittal, from any future prosecution.

These are elemantary rules, which must be substantially observed.

In ascertaining the duties imposed upon the justices in relation to jails, we 
find that the act of 1795, ch. 433, gives them power and authority to lay and 
collect taxes, from year to year as long as may be necessary, for the purpose 
of building, repairing, and furnishing their several court-houses and jails, 
in such a manner as they shall think proper.

The other act of 1816, ch. 911, converts this authority into a positive duty, 
and directs that the justices shall, from time to time, lay a sufficient tax 
to erect and keep m good repair, the public jail, court-house and stocks, in 
their respective counties. Without deciding whether the neglect of this duty 
is an indictable offence, it is obvious that the justices are not called upon 
to answer that charge, but one altogether distinct, viz., "negligently and 
unlawfully permitting the jail to go to ruin and decay."

There is no act which makes it the duty of the justices to repair the jail; 
and its going to ruin and decay, may be the consequence of their neglecting 
the duty which is assigned, but the offence producing that consequence should 
be positively stated. Against the charge, if stated in the terms of the act, 
they might have a defence, which they could not adduce in the present shape of 
the accusation; nor do I see how a conviction or acquittal on this indictment 
would protect them against a future prosecution for not laying the tax 
(supposing it to be indictable). The case of overseers of the road is very 
different from this; for the act makes it their positive duty to keep the 
roads in repair; a neglect in this point constitutes the indictable crime, and 
not the neglect of the preparatory steps, to which various penalties are 
annexed. For these reasons, without examining any other point that was made, I 
think the demurrer must be sustained.

Henderson, Judge.—The form of this indict-(197)ment is evidently taken from 
the English precedents of indictments against the county for not keeping in 
repair the roads and bridges within their county, and I agree with the counsel 
for the defendants, that there is no analogy in the cases. Of common right, in 
England, the county is bound to keep all public roads and bridges in repair; 
they can protect themselves from the burthen only by throwing it on some other 
person. The corpus delicti is the permitting the road or bridge to be out of 
repair. The law will admit of no such defence as here, the employment of all 
the means in their power, an ineffectual attempt to repair; it presupposes an 
ability, and concludes that these defences are false in point of fact. The 
justices of our County Court are not obliged, by their own exertions, to build 
and repair jails; they are only to use the means to that end which the law has 
placed in their power; they are to lay the tax, make the order, appoint a 
treasurer of public buildings, appoint commissioners to contract for the 
building of the jail. An omission to perform one or all those acts, when 
necessary, is a violation of their duty, and they being of public, concern, 
such omission is indictable. But the indictment must be conformable to the 
fact, it must charge which of those duties was omitted; for if this indictment 
were good, they might have maee the oreer for repairing the jail, appointed 
the treasurer of public buildings, laid the tax for that purpose, and 
appointed commissioners to contract, and in every respect done their duty, and 
yet the indictment be true, that is, the jail out of repair on account of a 
failure somewhere beyond the control of the justices, and when they are 
actually endeavoring to punish the individual who failed to do his duty and to 
rectify the injury which he had done. I repeat it again, they are not by law 
bound to build or repair jails, but to take specific measures to that end. 
Their liability arises not from the thing being undone,as here observed, but 
(198) in not taking those measures which the law has instructed them to take. 
I have no hesitation in saying, that for this they are indictable, and without 
the least corruption, for in these cases they act not in their judicial 
characters, but as police officers: and that they may be indicted jointly, or 
rather as a body; for it is for the omission as a body that they have 
offended; the omission of the one is not the omission of the other; they are 
not responsible for the acts of each other; but the body as a body is liable 
for its own acts. Any individual member may justify, or rather defend himself, 
as an individual, and escape individual punishment, by showing that he 
endeavored to cause the body to do its duty. The demurrer should be sustained.

Hall, Judge, assenting,

Judgment affirmed. 

Approved. S. v. Comm'rs, 15 N. C., 345; S. v. R. R., 44 N. C., 234; S. v. 
Comm'rs, 48 N. C., 399; Kensey v. Magistrates, 53 N. C., 186; White v. 
Comm'rs, 90 N. C., 437.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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