Wilkes County NcArchives Court.....State, V. Yeates 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:08 pm

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

December Term 1825

STATE v. YEATES. 

From Wilkes.

Under the act of 1816, ch. 20, corporal punishment and imprisonment cannot 
both be inflicted on a person found guilty of manslaughter.

Indictment for the murder of a slave, tried before Nash, Judge. The jury found 
the prisoner guilty of manslaughter, and the Court sentenced him to be 
imprisoned eleven calender months, and to receive at two several times thirty 
nine lashes. Tho prisoner, by his counsel, objected to that part of the 
sentence which imposed whipping; the objection was overruled, and the prisoner 
appealed.

The Attorney General argued the cause on behalf of the state.

Taylor, Chief Justice.—This case calls upon the Court, for the second time, 
for a construction of the act of 1810, ch. 918, which abolishes the punishment 
of burning in the hand in clergiable felonies. The nature of this (188) appeal 
has rendered it indispensable that the former opinion should be carefully 
reviewed and reconsidered; and I have done so, under a perfect disposition to 
pronounce the result of my present conviction, uninfluenced by any former 
opinion on the question.

It may be readily conceded, that a literal construction of the words of the 
act will justify the infliction of whipping on a conviction of manslaughter; 
but is the Court bound to give a literal construction of a statute, when they 
are thoroughly convinced that, in doing so, they will contravene the intention 
of the legislature? The answer may be made in the language of the law, that a 
statute should be so construed as will best answer the intent the legislature 
had in view; and this intention is sometimes to be collected from the cause or 
necessity of making the statute, and, sometimes, from other circumstances. 
This intention, whenever it can be discovered, ought to be followed with 
reason and discretion in the construction of the statute, although such 
construction seems contrary to the letter of the statute. A thing which is 
within the intention of the maker of a statute, is as much within the statute, 
as if it were within the letter; and a thing which is within the letter of a 
statute, is not within the statute, unless it be within the intention of the 
makers. (Bac. Abr. tit. Statutes.) The latter rule applies forcibly to the 
cases where the Court is required to pronounce a punishment as incurred by a 
crime, which they do not think the legislature intended to annex to it.

If it should be inquired, as it naturally will, why the persuasion should be 
so thorough, that the legislature did not intend that the crime of 
manslaughter should be punished by whipping, the answer is, that from the 
early period of our law, when a distinction was established between murder and 
manslaughter, by the introduction of the benefit of clergy, the latter 
offence, though felonious, has been considered as flowing from the frailty 
incident to human nature. It is the result of a temporary sus-(189) pension of 
the reason, induced by a provocation which the law deems legal. No disgrace, 
or opprobrium, ever has been, or is now, attached to the character of the man 
who commits it. The law has, in its policy, always denounced against the 
forfeiture of his goods as a punishment, because the violent death of a human 
being, however produced, was too serious a thing to be passed over without 
animadversion. But the burning in the hand; so far from being a punishment, 
restored the party to credit and capacity. He ceased to be a felon, and was 
restored to all his legal rights and privileges; he was purged from his guilt 
by the privilege of clergy, which Operated as a statute pardon.

To the other clergiable felonies, there was an original infamy attached, from 
which, however the statute pardon might restore the party to his legal rights, 
his character could not be cleansed.

A convicted thief, although pardoned and admissible as a juror or witness, has 
irrecoverably lost his caste in society.

As a punishment, burning in the hand was too slight; but whipping, though it 
could give no additional infamy to the crime, might deter others from the 
commission of it.

There was, too, an evident absurdity in whipping for a larceny, where the 
thing stolen was under the value of a shilling, and burning in the hand, where 
it was over that value. This was removed by the act, which punished both 
crimes by the same measure.

In the case of manslaughter, however, the benefit of clergy restored the party 
to his legal right, and, in so doing, its operation was full and complete; for 
no crime had been committed, which affected his moral estimation.

"We now consider," says Justice Foster, "the benefit of clergy, as a 
relaxation of tne rigor of the law, a condescension to the infirmities of the 
human frame. And therefore, in the case of all clergiable felonies, we now 
measure the degree of punishment by the real enor-(190)mity of the offence; 
not as the ignorance and superstition of former times suggested, by a 
senseless dream of sacred persons on sacred functions."

It appears to me, that in legislating on this subject, the first object was to 
get rid of the disgracing practice of burning in the hand; because the reason 
of its introduction had altogether ceased, which was to distinguish laymen 
from priests, that the former might not claim clergy a second time; and 
because it was too slight a punishment in larceny, and too disgraceful a one 
in manslaughter. That the words, "moderate pecuniary line," used in the act, 
were intended to apply to manslaughter; the "one or more whippings," were, 
applicable to larcenies: and "in the discretion of the Court, under the 
circumstances of the case," import a legal discretion, to be exercised with a 
view to the maxims, rules, and principles of criminal jurisprudence, and the 
moral sense and habitudes of the citizens.

It is mentioned by writers on the criminal law,as one of the glories of the 
system, that the species, though not always the quantity or degree of 
punishment, is ascertained for every offence, and that it is not left in the 
breast of any judge, nor even of a jury, to alter that judgment which the law 
has, beforehand, ordained for every citizen alike, without respect of persons. 
For if judgment were to be the private opinions of the judge, men would then 
be slaves to their magistrates, and would live in society without knowing 
exactly the conditions and obligations which it lays them under. (4 Bl., 317.)

The construction contended for on behalf of the state, would add a new 
principle to the criminal jurisprudence of the country, which is without 
example in its history. For there is no instance of a judge being invested 
with a discretionary power to consign a man to infamy by the nature of the 
punishment, unless there is something infamous or mean in the crime itself.

When the jury has convicted a person of man-(191)slaughter, the Court is bound 
to understand it in the sense of the law, as "the unlawful killing another 
without malice express or implied;" and is bound to apply that punishment 
which the law adapts to a crime, which arises from the sudden heat of the 
passions, and not from the wickedness of the heart.

The Court cannot aggravate the punishment from a belief that the jury have 
mistaken the case, aud ought to have found it murder; for that would be to 
usurp their constitutional functions. I have no fear that the judges of this 
land would not exercise this discretion with as much discrimination and 
lenity, as any others in the world, but I think it an unsafe rule to confer 
such a power, by force of a construction, which would introduce an anomaly 
into the criminal law, which the legislature did not seem to intend. The 
following sentiments of a great Judge on this subject are worthy of being 
remembered: "The discretion of a Judge is the law of tyrants; it is always 
unknown; it is different in different men; it is casual, and depends upon 
constitution, temper and passion. In the best, it is oftentimes caprice: in 
the worst, it is every vice, folly and passion to which human nature is 
liable."—Ld. Camden.

It may be thought, from the similarity of some expressions in this act with 
those of the 19 Geo., 3, that the latter was before the framer of the act, and 
that manslaughter, which is expressly excepted from the punishment of whipping 
by the British statute, is omitted in our act, in order that it might be 
subject to it. This is possible; but I think it more probable that the 
exception was omitted through mistake or inadvertence, and that the 
legislature could not have passed it in its present shape, if they had 
believed it would have borne the construction now contended for.

There have been six sessions of the legislature since the decision in the case 
of the State v. Kearney, applying to the act of 1816 the construction which is 
still ad-(192) hered to; and it is a very reasonable presumption that the 
members of the successive legislatures were apprised of the determination. 
Their silence on the subject is a strong reason for believing that they did 
not disapprove the construction adopted by the Court; because, upon several 
other occasions, they have passed laws in consequence of decisions made in 
this Court. My opinion is, that the judgment, so far as it sentences the 
defendant to be whipped, should be reversed, and affirmed as to the residue.

Judge Henderson concurred with the Chief Justice in opinion.

Hall, Judge, differed, and assigned his reasons as follows:

In the case of the State v. Kearney (8 N. C., 53), I think the rules of 
construction were stretched too far. I am still of the opinion that the law 
would be more wholesome, and founded in better policy, if it was as that case 
declares it to be, and did not embrace the case of manslaughter, and for the 
reasons given by the Court in delivering their opinion in that case; and in a 
matter of legislation, I would continue to be governed by those reasons; but 
as an expounder of the law, I confess I think the act of 1810, New Rev., ch. 
918, is broad enough to include the case of manslaughter, and that there is no 
room left for construction.

It is very true, that in the case of State v. Kearney, the judgment pronounced 
by the Superior Court was erroneous, because both fine and whipping were 
ordered, and on that account could not and ought not to have stood; but I do 
not shelter myself under that part of the case. It seemed to me then, that the 
opinion given on the act of assembly was correct. 1 have thought much on the 
subject since, and from the best consideration I have been able to give it, I 
feel myself under the necessity of retracting.

I observe that a similar law passed the British (193) parliament in the 19 
Geo., 3, ch. 74. In that law manslaughter is excepted. The Court may impose a 
fine, but cannot order whipping to be inflicted. However desirable it is, that 
a similar exception had been made in our law, as the legislature have not 
thought proper to make it, I think the Court would transcend their limits to 
make it by construction. For these reasons. I think judgment should be entered 
for the state. By a majority of the Court,

Judgment reversed.

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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