The Charlotte News

Monday, March 3, 1941

THREE EDITORIALS

Site Ed. Note: "Japan Marches" finds Zarathustra Cash at it again--prognosticating what would ultimately occur a mere three and a half and nine months later. Perpend.

"Four Records" is probably not by Cash, but we include it here for the sake of clarifying a couple of things. First, that journalists usually do not get the law, or if at all, rarely in its fullest sense, and therefore should best stay out of the sentencing business lest they glean the knowledge necessary of each individual case upon which comment is made, or at least until possessed and suffused of sufficient experience at courtroom law that they know what is exhibited in the interstices between the lines, the invisible-ink, sub rosa part. (Lawyers stop and smell the roses.)

For instance, the dry recitation below assumes that Mr. Booker was charged with larceny and assault with a deadly weapon, dismissed by "nol pros" ("nolle prosequi", meaning "not prosecuted"), and then prosecuted separately on different instances of the same charges a few weeks later, when in fact the same recitation admits of the alternative interpretation, and one most likely, that the prosecutor dismissed the charges once for want of evidence at the first proceeding, probably the failure of a key prosecuting witness to show for trial, and then re-initiated the same charges on the same conduct a few weeks later when he found his witness or body attached same.

The other reason we include this piece is to clarify something which few in the Bar of North Carolina seem to get, though the practice has been done thusly for time immemorial, that of handing down "prayers for judgment, continued" on criminal charges, usually if not always misdemeanors. The phrase comes from the prosecutor's "prayer for judgment". That is, when any prosecution is initiated, the prosecutor is said to pray the Court for judgment, much as the ad damnum--(try to figure out that one, with or without a Latin background)--clause of a civil complaint, the request for damages, is referred to as the "prayer" of the plaintiff for judgment. (Now, you know what the opposing lawyer (or your own) means when he or she tells you, "You haven't a prayer on your complaint, sirrah-madame.")

The "prayer" concept, incidentally, finds use to this day primarily in the original 13 colonies, those originally of the Crown of England, that being probably due to the notion that the Courts of England in those days derived their authority from the King or Queen, who in turn derived his or her authority by Divine Right from the Almighty, him or herself. Thus, the "prayer" for judgment, so as not to conflict too boldly with the proscription of the Bible against judging one's fellows. Only those receiving from the Almighty, indirectly through the King or Queen though it may have been, had authority to do that, you see. Convenient for the Royal invested robes of the Periwigged Magistrates; not so hot for the noblesse obliged peasantry or even for Sidney Carton, though barristered he was. (An alternative, more secular explanation for the usage might derive from the employment of a derivative of "pray" as a form of informal pleading in common parlance in Elizabethan times. "Prithee, sir, desist your remonstrable demonstration of loathsome and ill-instructed humours, else I shall flay you with my unsheathed and freshly whetted rapier, you dogged cur.")

Anyway, the "prayer for judgment, continued" is provided by kindly judges in cases where special circumstances apply, either lack of evidence to support the charge beyond a reasonable doubt, but a sufficient quantum pointing toward guilt to make a judgment of acquittal seem a little too lenient for a judge to provide, or certain mitigating circumstances of the accused, such as absence of prior record or such--or a prosecuting witness of dubious credibility, though if believed, supplying the necessary tip beyond the reasonable doubt.

The "prayer for judgment, continued" is often remarked upon by lawyers by analogy to traffic cases, where it is often handed down, with the effect that no traffic points are entered as a result on the record of the offender. Yet, to what effect in the criminal realm where no points are assessed--where, but for the prayer being continued, it is either conviction or acquittal? Often, the NC barrister will look a little befuddled at the query.

Hear ye, hear ye, oh yes, oh yes, oh yea, North Carolina practitioners of the art: The effect is clear under North Carolina law. Tell your clients that North Carolina General Statutes, Chapter 15A, Section 101(4a), (not to be confused with Highway 101, the inner-coastal highway paralleling California's ghost-hosted South Coast, or for that matter its nearly intersecting northward Highway 4 to Martinez, the one spawning the bumper sticker, "Pray for Me, I Travel...", not unlike the same such spawned by the old road from Chapel Hill to Pittsboro which some of the same used to travel, at least as diversion on lazy fall and spring afternoons when ardor to study failed the young student for want of seeming purpose), provides the following: "Entry of Judgment. - Judgment is entered when sentence is pronounced. Prayer for judgment continued upon payment of costs, without more, does not constitute the entry of judgment." (Now, first of all, let it be noted promptly, and forthwith as well, that the phrase "upon payment of costs" does not mean, dear cherub, payment by the defendant of his or her subsequent dues in life, generally--thus allowing the judgment to be entered when the defendant pays more than his or her dues. Nay. Indeed, such colloquial nonsense might probably run squarely afoul of the ban, implemented at the outset of the thing in 1789, on bills of attainder and ex post facto laws in any event, besides being, well, nonsense--no doubt a Jack Cadeism if ever there was one.) What this means, or at least has been so interpreted to mean by the North Carolina appellate courts, is that when a fine is entered on a prayer for judgment, it is regarded as a conviction; when only costs are entered without a fine, it is regarded as an undetermined judgment, not a conviction for any purpose. The reasoning is that when a fine is entered, the courts may presume that the sentencing judge intended penal consequences and thus a conviction is implied. In the case of costs only, there is a mere civil penalty without penal consequences; hence, no conviction. The fact that the prayer for judgment is continued, however, seems to cause the question of conviction to be begged even where there is a fine, at least one entered simultaneously with the continuance of the prayer for judgment.

Query, should the "prayer for judgment, continued" with a fine be regarded as an inconsistent judgment and therefore erroneous, much as an inconsistent verdict by a jury where a jury finds a defendant guilty of one offense but finds the defendant not guilty of another offense having all the elements of the offense on which the jury found the defendant guilty? In other words, should such a verdict by a judge not be regarded as a mistake such that the effect is to the benefit of the accused receiving the "prayer for judgment, continued", effectively suspending judgment, rather than having the negative implied, that the fine causes a conviction? After all, the accused often, if not always, gives up his or her right to appeal based on the entry of the "prayer for judgment, continued", believing it to be a suspension of judgment. Thus, is not the suggested implication of an inconsistent verdict and mistake the only fair result? Otherwise, the hapless defendant, given what seems to be lenient treatment in fact by the court, (in combination with poor legal advice from his or her lawyer at the time), winds up waiving rights of appeal which he or she may have invoked had the verdict been the non-ambiguous "guilty". The defendant is left then to the perilous course of collateral attack on the verdict by way of habeas corpus, which, incidentally, is likely left open as a course to the defendant as long as he or she suffers some detriment from the conviction implied by law in the context of a prayer for judgment with a fine.

And would not all such entries have to be regarded as mistakes by the court? For what else would a court mean by entering "prayer for judgment, continued" with a fine than to intend suspension of the actual finding of guilt? The "prayer for judgment, continued" would otherwise have no effect whatsoever in the context of imposition of a fine, as now interpreted by the North Carolina courts. Just pretty language? The "prayer for judgment, continued" becomes in that context mere surplusage which only tricks the defendant into waiving his or her right to appeal! Doubtless, judges so imposing such a "verdict", imputed as such by operation of law after the fact, do not intend such a harsh and unfair result, potentially harsher for its concomitantly imputed artifice than finding the defendant guilty. C'est la vie. Mr. Bumble occasionally had it right: "If the law supposes that, the law is a ass, a idiot."

We suppose that the prayer for judgment--sometimes thought by some to be the prayer of the defendant for judgment which is being continued, with all the semi-royal divine-rightist amplitudes implied therein, oh my--derives its basis from Scottish law, the "Scotch verdict", a verdict of not proven or an undetermined judgment. We might remember a use of the Scotch verdict in recent history by Senator Arlen Specter at the impeachment trial in 1999. (You do remember that trial, don't you? The one for ___ ___ in the Oval Office? You recall it. Yet, for all of that, we still don't know who Deep Throat was in 1972-73... Later.) In any event, we commend Senator Specter for his creativity and spunk, in the face of the overwhelming super-majority of his own party which shared none of those attributes at that time. We also commend the author of an unpublished novel of the same name, that is, "A Scotch Verdict", about the death of W. J. Cash, for the same in 1991-92. (Incidentally, a Scotch verdict is a very different thing from Scotch broom, an invasive species, the head of which is often used as a diuretic, making its head therefore indubitably full of something other than sense. Thus "Scotch broom" is more at "bobbarrs", at least in Gaelic. See O.E.D. for the rest of the story, as in:

"1. A deceiver.

1542 UdallErasm. Apoph. 6a, Those persones he pronounced woorthie to be accounpted deceytful, bobbers of menne, whiche by fraude dyd make eche manne beleue, etc.

"2. A mocker, one who taunts.

1576 Newton tr. Lemnie's Complex.(1633) 160 The Cholericke are bitter taunters, dry bobbers, nipping gibers, and scornefull mockers of others.")

Incidentally, following the rule of statutory construction that all words of a statute are to have meaning and none are to be regarded as surplusage, the more reasonable interpretation of "without more" in NCGS 15A-101(4a) appears rather that it implies the situation, rarely occurring, where the continuance of the prayer is ended on cause, delimited usually to one year, the statute of limitations on re-prosecution of misdemeanors, (see NCGS 15-1), from entry of the continuance, and sentence is actually thereafter pronounced.

White cliffs of Dover? ...

While Wheeler Bawls She Sweeps On to Empire

The sinister intention of the Japanese to hurry through with their plans to seize Singapore and the Indies, to build their empire of over half the population of the earth, is testified to not only by the Indo-China case but also by the announcement that an airline is to be established between Tokyo and Timor.

Timor belongs to Portugal, supposedly friendly to England. But Portugal does not dare resist the demands of Japan and her Allies. And there is no doubt at all that the airline is a disguise--and a thin and contemptuous disguise at that--of Japan's intention to establish an air, and probably a submarine, base there. Else the airline would be idiotic. Timor is a mainly wild and unknown island from which nothing important comes.

But strategically, it is worth a great deal to Japan. It establishes her far south of Singapore in the very middle of things. Four hundred miles southward lies Australia--with Sidney and Melbourne within the outside range of bombers. Far more important, it establishes her directly across the path of any ship bound to Singapore from Australia. Once established there her planes and submarines can effectually cut off supplies and reinforcements to the great Malay and British base.

And it puts her at the back door of Java and Celibes, Sumatra, and Borneo--the Indies.

Wherefore this sudden resolution on the part of the so long hesitant Japs? Perhaps from the knowledge that Hitler will strike soon. But almost certainly, too, from listening to the endless braying in Washington--the identical sort of braying which has already been the death-song of most of the world's democracies.

Much Sentenced, They Went To Jail Little or Not at All

The records of the four Negroes who escaped from County Jail last Tuesday and were rounded up between that day and Friday morning, are instructive.

Laney, the killer, had already murdered one man in Durham. He shot another man at the same time he murdered the second victim. He got 30 years.

Walker had an entry on his record in 1939, had eight charges of larceny when he was sentenced to four years Monday.

Burns was convicted for larceny July 17, 1936, sentenced to 75 days on roads. May 4, 1937, he was back for larceny, bond set at $750--no record of trial or sentence. July 8, 1938, he was sentenced to ten days for liquor law violation. March 7, 1939, he got 30 days for trespass. At the same time twelve months on the roads was handed him for larceny. But on July 8, 1939, he was up for larceny again, this time to draw a sentence of six months. November 6, 1939, found him back to be sentenced to six months (suspended!!) for assault with deadly weapon.

He enjoyed his liberty so well that on April 6, 1940, he was put under $500 bond for larceny--no record of trial. February 8, 1941, he was back for nine counts of larceny--was sentenced to four years Monday.

But most remarkable of all was the case of Booker.

Oct. 1, 1937, he got a jail sentence for storebreaking and larceny, two counts. On April 17, 1938, he was held for Superior Court $2,000 bond for storebreaking and larceny--no record of trial. A charge of larceny and assault with deadly weapon was nol-prossed July 26, 1938. By Sept. 9 he was right back to be sentenced to twelve months for larceny and assault with a deadly weapon. Then ten days later he was up for malicious damage to property and prayer for judgment was continued. May 11, 1939 found him being bound over to Superior Court under $5,000 bond for robbery. On May 22 another case of robbery got him the same treatment. Jan. 19, 1940, saw him being bound over under $2,000 bond for breaking and entering. By Feb. 22 he had bounced back for larceny and was bound over. And on Feb. 12, 1941 he was bound over on seven charges of larceny and receiving, was sentenced to four years Monday.

At that rate, Killer Laney ought to be loose to kill another man in three weeks at most.

And Col. Kirkpatrick probably will repeat what he came forth with last Saturday:

"We say it without fear of contradiction that John G. Carpenter's record as solicitor and prosecuting attorney for the State will compare most favorably with any of his worthy predecessors in this high office."

But Vast Treasures of Gold Have Their Dangers

People who are forever warning us that we are in imminent peril of momentary inflation (like Hugh Johnson) will find no comfort in the announcement that the Treasury now owns twenty-billion smackers in gold. That is over 50 per cent more than all the paper money now circulating in the country.

Inflation does not come directly from the size of the government's debt. It comes from loss of confidence in the currency. And so long as gold retains its present status, there is obviously no basis for loss of confidence in U.S. currency--and even though the Government will not pay out gold to the private citizen.

There is, however, one very grave danger in the situation. The present holdings of the United States represents three-quarters of the gold and the world. And it is obvious that the rest of the world cannot long tolerate that. Either the gold will have to be somehow redistributed or the other nations will permanently repudiate it. But the value of gold depends exactly on the fact that it has been the universally acceptable medium of exchange and so the standard international currency. Deprive it of that status and it will immediately cease to have its present intra-national status also.