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Nice try, no cigar

As legal arguments go, it’s one of the better ones.

It didn’t work, not one bit, but it’s still a pretty good try.

The year was 1866. The place, Wake County, North Carolina.

PutneyAnd, on the first of November of that year, a man named Richard Putney “with force and arms, … one mule of the value of sixpence, of the goods and chattels of one Capt. Van Aiken, … feloniously did steal, take and carry away, against the peace and dignity of the State.”1

He wasn’t the only one charged — a man named John Eagan was also indicted for the crime of stealing the mule. The record reflects that in March 1867, Eagan appeared before Superior Court in Wake County and judgment was suspended upon the payment of costs. At that court session, however, Putney didn’t show up.2

The record goes on to show that Putney did come to court in September 1867, was tried before a jury, and convicted. His lawyer promptly filed a motion in arrest of judgment, judgment was arrested, and the Attorney General asked for an appeal, which was allowed.3

So… first off… what just happened here?

The jury found the guy did steal the mule, and then what?

A motion for an arrest of judgment is a legal claim that a court should consider “staying a judgment, or refusing to render judgment in an action at law, after verdict, for some matter intrinsic appearing on the face of the record, which would render the judgment, if given, erroneous or reversible.”4

In other words, Putney was arguing that — no matter what the evidence was — something about the case was fundamentally wrong and judgment couldn’t be entered against him.

And what was it he said was fundamentally wrong?

There’d been a change in North Carolina law, he said, and because of the change in the law, he couldn’t be punished at all for stealing a mule.5

It seems that at the time the crime was committed, North Carolina law offered a court a variety of options to punish the crime of mule-stealing: whipping, imprisonment or fine, one or all.6 But by the time Putney came to trial, the law had changed: mule-stealing carried the death penalty.7

And so, Putney’s lawyer argued, he couldn’t be punished at all: not under the Statute of 1866-’67, because the offence was committed prior thereto; and not under the old law, because it is repealed by the new.8

The North Carolina Supreme Court was singularly unimpressed:

It is true that the defendant can not be punished under a law which was not in existence at the time when the offence was committed, because that law would be ex post facto, unless where it lessens the punishment. It is equally true that, where a new law expressly or impliedly repeals the old law, there can be no conviction under the old law. But the Act of 1866-’67 has no application to the case before us, because it does not repeal the old law, but is only prospective in its character and is to be read thus: If any person shall here after steal a mule, etc., he shall suffer death. All larcenies committed before that act are to be tried and punished without reference thereto.9

In plain English, the Court agreed that Putney couldn’t be punished under the new law — the U.S. Constitution says ex post facto laws — laws passed after an action that change the legal consequences of that action10 — are illegal. That’s why the Court said the new statute was prospective: it only applied to crimes committed after it was enacted.

But, the Court found, there was no falling between the cracks here: the old law still applied to crimes committed when it was in effect.

Nice try.

No cigar.

Now… you can get half of this story from the reported decision of the North Carolina Supreme Court, published in 1868, and available on Google Books.

You can get half of this story from the case files of the North Carolina Supreme Court, online at FamilySearch.

But you only get the whole story when you look at both.

And you thought court records were boring…


  1. Transcript, State v. Richard Putney, Box 363, Case 9109, Supreme Court of North Carolina; digital images, “North Carolina, state Supreme Court case files, 1800-1909,” FamilySearch ( : accessed 29 Nov 2017).
  2. Ibid.
  3. Ibid.
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 90, “arrest of judgment.”
  5. Defendant’s Brief, State v. Richard Putney, Box 363, Case 9109, Supreme Court of North Carolina.
  6. State v. Putney, 61 N.C. 543 (1868).
  7. Ibid., 61 N.C. at 544.
  8. Ibid.
  9. Ibid.
  10. Black, A Dictionary of Law, 446, “ex post facto.”
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