The Surest Point of All the Law: Evolving Standards in State v. Lancaster

Reminiscent of the Wars of the Roses, our Supreme Court’s recent opinion in State v. Lancaster, __ N.C. __, 895 S.E.2d 337 (2023), concerns an offense first codified in 1328 during the reign of Edward III.  The common law crime of going armed to the terror of the public, our Supreme Court there held, does not require allegation or proof that the conduct occurred on a public highway; hence, there was no facial defect in an indictment omitting this putative element.  Other elements not explicitly stated in the same indictment – for the purpose of terrifying, in a manner that would naturally terrify – were “clearly inferable.”  This post examines Lancaster to ascertain the direction of our Supreme Court’s avowed retreat from archaic pleading requirements.

I. Ancient landmarks

“Common law” is an ambiguous term.  Sometimes used synonymously with caselaw, it refers more specifically to the law of England – both statutory and judge-made – that the colonists were applying in this state at the time of the American Revolution.  This is the law referred to in Section 4-1, where the legislature declares the common law to be in force within this state except where it has been “abrogated, repealed, or become obsolete.”  N.C.G.S. § 4-1; cf. State v. Vance, 328 N.C. 613, 617, 403 S.E.2d 495, 498 (1991) (“the common law of England.”).  Of course, the legislature can abrogate the common law by statute.  State v. McLymore, 380 N.C. 185, 196, 868 S.E.2d 67, 76 (2022).  But it can just as easily codify it, and it becomes the business of the courts to determine which it has done.  Compare id., 380 N.C. at 190, 868 S.E.2d at 72 (statute abolished common law right to perfect self-defense), with State v. Moorman, 320 N.C. 387, 392, 358 S.E.2d 502, 506 (1987) (“Our rape statutes essentially codify the common law of rape.”).

Legislative reception of the common law has substantive and procedural consequences.  Unlike many states and the federal government, North Carolina continues to recognize common law crimes, offenses not defined by any statute.  Such was the crime in Lancaster.  “Because of its tendency to stir up breaches of the peace, ‘terrifying the good people of the land’ by ‘riding or going armed with dangerous or unusual weapons’ was a common law misdemeanor.”  Rollin M. Perkins & Ronald N. Boyce, Criminal Law 492 (3rd. ed. 1982).  Our Supreme Court acknowledged the existence of this crime – going armed to the terror of the public – notwithstanding legislative quiescence, as early as 1843.  See State v. Huntly, 25 N.C. (3 Ired.) 418 (1843) (per curiam).