State v. Edwards

• Decision Date: 21 October 1925
• Docket Number: 81.
• Citation: 130 S.E. 10,190 N.C. 322
• Parties: STATE v. EDWARDS.
• Court: North Carolina Supreme Court

130 S.E. 10

190 N.C. 322

STATE v. EDWARDS.

No. 81.

Supreme Court of North Carolina

October 21, 1925

Appeal from Superior Court, Hertford County; Daniels, Judge.

H. L Edwards was charged with a violation of the Worthless Check Act (Pub. Laws 1925, c. 14). From a judgment sustaining defendant's demurrer and discharging him, State excepts and appeals under C. S. § 4649. Affirmed.

"Demurrer" defined; issue joined on demurrer to be determined by the court.

The indictment charges:

"That H. L. Edwards, late of the county of Hertford, on the 1st day of March, in the year of our Lord 1925, at and in the county aforesaid, did unlawfully and willfully draw and deliver to C. E. Myers & Co. a check signed by the said H L. Edwards and drawn on a bank for the payment of money and the said H. L. Edwards at the time of delivering said check had insufficient funds on deposit in said bank with which to pay said check upon its presentation, and the said H. L. Edwards unlawfully and willfully did fail to provide said funds for the payment of said check upon its presentation and further the said H. L. Edwards unlawfully and willfully did fail to provide said funds for the payment of said check upon its presentation within 10 days after written and verbal notice of nonpayment of said check, against the form of the statute in such case made and provided and against the peace and dignity of the state."

The defendant filed the following demurrer:

"The defendant demurs to the bill of indictment in this action, and avers that allegations and the count therein set up no crime or misdemeanor indictable under the laws of North Carolina, or the commission of any offense against the said state, for that chapter ______, Public Laws of North Carolina, Session 1925, known as the Worthless Check Act, violates and is repugnant to: First, article 1, § 16, of the Constitution of North Carolina; second, Amendment 14, § 1, of the federal Constitution; and, third, that the bill of indictment contains no allegation that the defendant failed to provide credits for the payment of the check set out in said bill."

The demurrer was sustained, and the defendant discharged. The state excepted and appealed. C. S. § 4649.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

Lloyd J. Lawrence, of Murfreesboro, for appellee.

ADAMS J.

Archbold defines a demurrer as a pleading by which the legality of the last preceding pleading is denied and put in issue; and he says it is pleaded either to the indictment or to a special plea. Cr. Pr. & Pld. 354; State v. Moody, 150 N.C. 847, 64 S.E. 431. The office of a demurrer is to take advantage of defects in substance or in form which appear upon the face of the indictment, thereby forestalling a prosecution on the ground that the charges do not constitute a breach of the criminal law; and the issue thus joined is to be determined by the court.

If the present indictment is defective upon its face, the demurrer must be sustained without regard to the question whether the act prohibiting the giving of worthless checks is or is not constitutional. Pub. Laws 1925, c. 14. That it is defective hardly admits of serious doubt. Where a statutory offense is charged, the indictment should set forth all the essential requisites prescribed by the statute, and no element should be left to inference or implication. Accordingly it was said in State v. Liles, 78 N.C. 496:

"Where the words of a statute are descriptive of the offense, the indictment should follow the language and expressly charge the described offense on the defendant, so as to bring it within all the material words of the statute."

And in State v. Mooney, 173 N.C. 798, 92 S.E. 610:

"It is well recognized that in indictments on a statute the essential words descriptive of the offense or their just equivalent must be given, and when the terms used have acquired a technical significance, for which there is no just equivalent, such words must be given with exactness. The correct position is very well stated in Clark's Cr. Procedure as follows: 'It is generally necessary, subject to exceptions which we shall explain, not only to set forth all the facts and circumstances which go to make up the offense as defined in the statute, but also to pursue the precise and technical language of the statute in which they are expressed. If the words are

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