ALLEN, J., concurring in result; CLARK, C. J., filing concurring opinion. There was a verdict of guilty. The court sentenced defendant to twelve months imprisonment in the common jail of Lenoir County, not to be worked on the roads. The defendant appealed. The defendant was a convict guard of the county of Lenoir, acting under the superintendent of the road force, one Bryant Taylor. He is indicted for whipping Junius Potter, a convict. At the conclusion of all the evidence the court instructed the jury that if they found the facts to be as testified to by the witnesses, they should render a verdict of guilty. The only witness introduced by the State was Jim Benton, an ex-convict, who had served a term on the roads. He testified that while he was on the roads he saw defendant whip Junius Potter with a strap 2 1/2 inches wide, 2 1/2 feet long, and 1/4 inch thick or more; that he was whipped on his bare back; that defendant made Potter get down and pull down his pants and had men to hold him; one held his head and one sat on his legs and one held his feet; that the "whole crowd" were present and fifteen or twenty licks were administered on the bare flesh.
The defendant was not examined as a witness, but offered evidence substantially as follows:
The superintendent of the road force, Bryant Taylor, testified that Potter would not work; that he ordered him to get a shovel and go to work, and he again refused; that this order was repeated three or four times, and Potter still refused; that Potter's health was good (897) and he made no excuse that he was unable to work. In consequence of such repeated refusals to work, witness instructed defendant to take him over the hill away from the other convicts and strike him five or six licks.
Dr. Parrott testified that he examined Potter that night, and found no bruises on him; that he examined him to see if he had been whipped too much, and found no evidence that he had been bruised; that Potter was then suffering with a very mild type of venereal disease for which witness treated him.
Bryant Taylor, being recalled, testified that "after Mr. Mincher had given him the licks that I mentioned, in respect to his obeying my requirements to work, it had great effect. We never did have to whip him any more, for four months; he worked after then. He had been doing mighty sorry before then. That was the only trouble that I had had with him."
The defendant introduced the following portion of the minutes of the county commissioners of Lenoir County for 5 October, 1914. "Ordered: That the superintendent of the roads be and is hereby authorized to use such means as he may deem necessary to enforce order and obedience by the convict force."
Evidence was offered tending to prove that the board of commissioners of Lenoir County enacted certain rules and regulations for the punishment of refractory and unruly convicts, and that they were in typewriting and posted in the convict camps, but no evidence whatever is in the record as to what the regulations were. They were not recorded on *Page 956 the minutes of the board, as they should have been, and no one seems to know anything about them.
1. The defendant contends that there was a variance between the indictment and the proof, in that the indictment charged the assault to have been committed with a club, whereas the proof showed the use of a strap 2 1/2 inches wide and 1/4 of an inch thick, or more. The defendant could not have been misled, as the person the indictment charged him with assaulting had been on the road force, and the defendant must have known that the charge against him was for unlawfully flogging a convict.
In S. v. Gould, 90 N.C. 658, it was held that where an indictment for murder charged that the mortal wound was inflicted with a rock, and the proof was that the instrument used was a stick, there was no variance. The Court said: "The bill charges that the wound was given with a rock, and the proof rather tended to show that it was given with a stick. It can make no difference whether the deceased was stick with a (898) rock or a stick; for it is held that where the instrument of death laid in the indictment and that proved are of the same nature and character, and the method of the operation is the same, though the instrument is different, there is no variance."
In S. v. Weddington, 103 N.C. 364, the indictment charged that the killing was done with a piece of plank, and the proof showed that it was done with a piece of iron. It was held that the variance was not necessarily fatal.
In S. v. Speaks, 94 N.C. 865, on an indictment charging that the killing was done with a rock, it was held that there was no error in the charge to the jury that if the killing was done with a rock or other missile, etc., and the Court emphasized the principle stated in the Gould case, that there is no variance when the wound is inflicted with "some other instrument of the same nature and character when the method of the operation is the same."
2. It is contended that the court erred in the charge. We think the charge is fully warranted by the evidence. If the evidence is believed, the defendant administered an excessive and unnecessarily humiliating punishment to the convict. What credit or faith the jury should give to the evidence of the ex-convict Benton was a matter for them. It was within their prerogative to discard it entirely. Nevertheless, they acted on it and convicted the defendant.
The defendant's witness Taylor, the superintendent, testified that he instructed defendant to take Potter over the hill away from the rest of the convicts and strike him five or six licks.
The State's witness testified that the convict was made to get down and remove his clothing; that one man held his head, another sat on his legs; and another held his feet, and that defendant struck him *Page 957 fifteen or twenty blows with the strap on the bare flesh in the presence of the "whole crowd."
If this evidence is believed by the jury, as it seems to have been, the defendant exceeded the instructions given him by his superior, Taylor, and the punishment inflicted was excessive and unnecessarily humiliating.
In that view the defendant is guilty. There is another view in which the defendant is guilty. There is nothing in the record to prove that the board of county commissioners enacted any rules and regulations for disciplining convicts by the administration of corporal punishment. There is evidence that the board adopted some regulations, but they were not recorded and no one has testified to their purport. The order of the board that the road superintendent be authorized to use such means as he may deem necessary to enforce obedience by the convict force does not authorize the infliction of corporal punishment. It is a delegation of a power which the board only can exercise and commits to the (899) discretion of the road superintendent a very vital and important matter which must be regulated and prescribed by the commissioners themselves. It is their duty to prescribe the kind and quantum of punishment to be administered, for what breaches of discipline and by whom it is to be inflicted.
In the prevailing opinion in S. v. Nipper, 166 N.C. 272, Mr. JusticeHoke says: "These statutes clearly contemplate that the control and discipline of convicts, and particularly in reference to their punishment, corporal or other, shall be pursuant to rules formerly made and published by the board of county commissioners, or their duly authorized agents, and I would not hesitate to hold that these rules should be humane, reasonably designed to affect the well ordered goverance of convicts, and that, in their prominent features, they should be made known beforehand to each and every prisoner, that they may live and act with knowledge of the penalties attendant on disobedience. In applying such a standard, I am not prepared to say that never, under any circumstances, is corporal punishment permissible, or that carefully prepared rules looking to such result are in all instances unlawful; but the question is not presented on this appeal, for there is no proof or suggestion that there were any rules or regulations of any kind which authorized the punishment inflicted in the present case."
Since that opinion was published, the General Assembly has convened and failed to forbid corporal punishment as a means to discipline convicts sentenced to work upon the public roads of the State. The kind of punishment that may be inflicted in order to enforce obedience to discipline upon the part of convicts engaged in working the public roads of the State is a difficult problem of serious importance addressed to the wisdom of the General Assembly. The convict system of working the *Page 958 public roads is well established in a majority of the counties of the State, and many hundreds of miles of good roads have been constructed since it was first adopted. The convicts are necessarily worked at considerable distances from the county jail. Such jails are not equipped with dark cells and other instrumentalities for enforcing obedience employed in well regulated penitentiaries, and if they were, they are not accessible.
If the convict is returned to jail because he will not work, he accomplishes his purpose. It is what he desires, and it destroys entirely the efficiency of a sentence to hard labor upon the roads. If the convict system of working the public roads is to be maintained, some kind of summary punishment must be inflicted in order to compel the unruly convict to work and in order to enforce discipline and obedience (900) to authority. If this cannot be done, the system may as well be abolished.
No error.
ALLEN, J., concurs in result.