Town of Washington v. . Frank and John , 46 N.C. 436 ( 1854 )

The warrant under which the defendants were arrested was as follows:

STATE OF NORTH CAROLINA,} Beaufort County. }

Town of Washington: To the Sergeant of said Town, to execute according to law:

Whereas, the Commissioners of Washington complain that negro slaves John and Frank, the property of John Myers and son, did, on Sunday, 5th instant, violate town ordinance, No. 5: Now, therefore, you are hereby commanded to arrest, c., to answer said complaint, and otherwise to be dealt with according to law, c.

(Signed,) JOHN NORCOM, [SEAL.] Int. Police of Town of Washington.

The ordinance No. 5, of the town of Washington, upon which this proceeding is based, is as follows:

"The Commissioners for the Town of Washington do hereby prohibit and forbid all disorderly shouting and dancing, and all disorderly and tumultuous assemblies on the part of slaves and free negroes in the streets, market and other public places in said town, by day and by night. Any white person, or free person of color, violating this ordinance, shall, upon conviction of the same, forfeit and pay a sum not exceeding ten dollars, and any slave violating said ordinance shall, upon conviction, be punished with not more than thirty-nine lashes for each and every offence."

The charter of the town, under which the ordinance was passed, was in evidence, but as no question arises in the case, upon its provisions, it is deemed unnecessary to set it forth.

John Norcom, the Intendant of Police, was offered as a witness in behalf of the plaintiffs, and objected to by defendants, upon the ground of interest, but the objection was over-ruled by the Court, and the witness proceeded to state that he was sitting in the back room of his office, in the town of Washington, on Sunday, with the door closed; that he heard a loud noise in the street, went to the door, and saw a company of half a dozen negroes, among whom were the defendants. They were laughing and talking, making much noise. One negro had a stick in his hand, and the others were engaged in a scuffle with him, with a view of taking it away. There was no quarreling or fighting, but only laughing and talking. There was no white person present. Witness commanded the negroes to disperse, which they did, and he returned to his office. In a very few moments afterwards, the witness heard a still greater noise at the same place, and, on going to the door, he saw that they were the same negroes re-assembled, making much noise and disorder, by loud and boisterous laughing and talking. He again dispersed them.

The defendant's counsel contended that they could not be convicted upon this evidence, because it did not appear that the slaves had been guilty of any breach of the peace, nor had violated any pre-existing laws, nor had they assembled for any unlawful purpose, nor had done any unlawful act while they were assembled, and that for this reason they had not violated the ordinance.

The Court expressed the opinion that the Intendant and Commissioners of the town of Washington had power, under their charter, to pass all needful rules and regulations for protecting the quiet and repose of the citizens, whether such rules and regulations prohibited acts already contrary to the laws, of the State, or otherwise, provided they were not inconsistent therewith. The Court further instructed the jury, that the intent of this ordinance was to prevent all such noise and disorder in the public places of the town, arising from the acts therein specified, as would molest the quiet of the citizens. The evidence was left to them, to say whether the noise made by the defendants was so great as to disturb others. If so, the defendants would be liable, though such noise may have been produced by a sport or play, in which they were engaged.

Under these instructions, the verdict was rendered for the plaintiffs.

Rule for a venire de novo, for admission of improper testimony and for misdirection to the jury. Rule discharged. Judgment and appeal. The first objection raised in behalf of the defendants, is, as to the competency of Dr. Norcom, as a witness for the prosecution. The objection is placed on two grounds: 1st. The witness is a party of record, being one of the Commissioners of the town; and, 2ndly, that he is a corporator. As to the first, he is necessarily a party plaintiff, by force of the town ordinance, and his being a Commissioner does not deprive him of his privilege as a corporator; and as such he is a competent witness. Although Dr. Norcom is a corporator, yet he is entirely without interest in the matter, or it is so remote that the law cannot regard it. The same objection in principle was raised in the case of JACKSON against the COMMISSIONERS of Hillsboro', Dev. and Bat 177. The action was in ejectment for a lot in the town. One Horton, who was a corporator, was offered as a witness by the defendant. The Court say, as a corporator, Horton was competent, because he had no private and distinct personal interest. It is clear that simply being a corporator does not disqualify him as a witness. In this State, the citizens of a county are constantly received as witnesses upon indictments, although the fines imposed belong to the county, and it is liable for the costs if it fail. In the case of JACKSON, the Court conclude their opinion by saying, "it would seem to us, that an interest in the whole community, for the common weal only, it is not a particular private interest which makes the verdict of advantage or disadvantage to each citizen; or that if it be, that it is so minute and remote, that the argument of slight bias from it, is repelled by the frequent necessity of using such witnesses or having none." And it must be so; if it were not, the revenue laws never could be enforced against a delinquent officer. The principle established by the case referred to, is an answer to each ground of objection to the competency of Dr. Norcom as a witness.

The counsel for the defendants contended that the acts complained of were no violation of the ordinance; that the ordinance only intended to prohibit such acts as were in violation of some pre-existing law of the State. We cannot agree to this proposition. If true, it would sweep away the whole of the police regulations of the different public corporations of the State. The very object of their institution is to call into existence such laws and regulations of conduct, as may be thought by the corporators to be required by their several situations. Different regulations are required in different localities; for example, regulations which are needful and proper for the town of Wilmington, would not be so for the town of Hillsboro', or any town off the seaboard. The Commissioners of Washington had the power to pass the ordinance in question; for it violates no law of the State nor the constitution. Did the conduct of the defendants bring them within its operation? We are very clearly of opinion that it did, not only in word but in spirit. They were violating the Sabbath, and were creating a noise in the public streets, within the limits just expressed; the Commissioners of every incorporated town have a right to establish any and every regulation which, in their judgment, is needful to the comfort and interests of the citizens. His Honor instructed the jury, that the intent of the ordinance in question was to prevent all such noise and disorder in the public places of the town, arising from the acts therein specified, as would molest the citizens. It was left to the jury to say, whether the noise made by the defendants was so great as thus to disturb others. If so, the defendants were guilty, though the noise was made in play. In this charge, we entirely concur. The language of the ordinance is, "that the Commissioners of Washington do hereby prohibit and forbid all disorderly shouting, dancing, and all disorderly and tumultuous assemblies on the part of slaves and free negroes in the streets," c., "both on Sundays and on other days," c. Slaves compose so large a portion of the population of our towns and villages, that, in passing rules and regulations for their government, much must be left to the judgment and discretion of those who are to enforce them, in their application to particular cases. STATE v. BILL, 13th Ired. 373. We think in this case the ordinance was violated, and that the presiding Judge committed no error in admitting the testimony of Dr. Norcum, or in his charge to the jury.

A motion was made to arrest the judgment, because the warrant did not set forth the act of Assembly, by virtue of which the ordinance was passed. The objection is a fatal one. STATE v. MUSE, 4th Dev. and Bat. 219. A motion was then made to amend the warrant; which, on the authority of Muse's case, is allowed at the costs of the plaintiffs.

Judgment affirmed, and opinion to be certified.