4 S.E. 29 (N.C. 1887), State v. Tytus

Citation4 S.E. 29, 98 N.C. 705
Opinion JudgeDAVIS, J.
Party NameSTATE v. TYTUS.
AttorneyThe Attorney General, for the State. No counsel contra.
Case DateNovember 28, 1887
CourtUnited States State Supreme Court of North Carolina

Page 29

4 S.E. 29 (N.C. 1887)

98 N.C. 705

STATE

v.

TYTUS.

Supreme Court of North Carolina

November 28, 1887

Appeal from superior court, Anson county; CONNOR, Judge. The Attorney General, for the State.

No counsel contra.

DAVIS, J.

Indictment tried before CONNOR, J., at fall term, 1887, of Anson superior court. It is charged that the defendant, "on the tenth day of June, in the year of Our Lord one thousand eight hundred and eighty-seven, with force and arms, at and in the county aforesaid, unlawfully and willfully did enter the gin and mill house of one B. V. Henry there situate, and in which said house there was at that time cotton, meal, and other personal property, in the night-time, and with intent to commit the crime of larceny, and that the said Moses Tytus was found by night in said house with intent to commit the crime of larceny, against the form of the statute in such case made and provided, and against the peace and dignity of the state." There was a verdict of guilty, and motion for new trial, which was overruled. The defendant then moved in arrest of judgment, which was also overruled. Judgment and appeal.

The only question presented by the record for our consideration arises upon the motion in arrest of judgment. Section 996 of the Code enacts, among other things, that, if any person "shall break and enter a store-house *** or other building where any merchandise, chattels, money, valuable security, or other personal property shall be; *** with intent to commit a felony or other infamous crime therein, every such person shall be guilty," etc. Section 997, among other things, enacts, if any person "shall be found by night in any such building, [dwelling or other building whatsoever,] with intent to commit a felony or other infamous crime therein, such person shall be guilty," etc.

The indictment contains, in one and the same count, both charges, not set out, it is true, in the language of the statute, but in a manner sufficiently "plain,

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intelligible, and explicit" to express the charge against the defendant, within section 1183 of the Code. It has often been said that it is generally proper and safe, and therefore better, in an indictment for an offense created by statute, to describe it in the words of the statute. There are some exceptions...

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6 practice notes
  • 119 S.E. 504 (N.C. 1923), 241, State v. Allen
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 24, 1923
    ...of larceny, rape, or arson. State v. Staton, 133 N.C. 643, 45 S.E. 362; State v. Ellsworth, 130 N.C. 690, 41 S.E. 548; State v. Tytus, 98 N.C. 705, 4 S.E. 29; State v. Christmas, 101 N.C. 755, 8 S.E. 361. But it is necessary, in order that the charge may be certain, to state the particular ......
  • 41 S.E. 887 (N.C. 1902), State v. Peak
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 10, 1902
    ...commit an offense need not technically charge the offense intended to be committed. This is clearly and distinctly held in State v. Tytus, 98 N.C. 705, 4 S.E. 29, State v. Christmas, 101 N.C. 749, 8 S.E. 361, and was reaffirmed in State v. Ellsworth (at this term) 41 S.E. 548. If, therefore......
  • 73 S.E. 162 (N.C. 1911), State v. Goffney
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 20, 1911
    ...follows the wording of the statute. An indictment like the one at bar in this respect was held good in the case of State v. Tytus, 98 N.C. 705, 4 S.E. 29. See, also, State v. Staton, 133 N.C. 643, 45 S.E. 362. 2. It is contended by the learned counsel for defendant in a well-prepared brief ......
  • 41 S.E. 548 (N.C. 1902), State v. Ellsworth
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 20, 1902
    ...The solicitor followed a decision of this court which is exactly in point, and the judge properly denied the motion. State v. Tytus, 98 N.C. 705, 4 S.E. 29. This case has since been cited with approval in State v. Christmas, 101 N.C. 755, 8 S.E. 361. A witness testified that the defendants ......
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6 cases
  • 119 S.E. 504 (N.C. 1923), 241, State v. Allen
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 24, 1923
    ...of larceny, rape, or arson. State v. Staton, 133 N.C. 643, 45 S.E. 362; State v. Ellsworth, 130 N.C. 690, 41 S.E. 548; State v. Tytus, 98 N.C. 705, 4 S.E. 29; State v. Christmas, 101 N.C. 755, 8 S.E. 361. But it is necessary, in order that the charge may be certain, to state the particular ......
  • 41 S.E. 887 (N.C. 1902), State v. Peak
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 10, 1902
    ...commit an offense need not technically charge the offense intended to be committed. This is clearly and distinctly held in State v. Tytus, 98 N.C. 705, 4 S.E. 29, State v. Christmas, 101 N.C. 749, 8 S.E. 361, and was reaffirmed in State v. Ellsworth (at this term) 41 S.E. 548. If, therefore......
  • 73 S.E. 162 (N.C. 1911), State v. Goffney
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 20, 1911
    ...follows the wording of the statute. An indictment like the one at bar in this respect was held good in the case of State v. Tytus, 98 N.C. 705, 4 S.E. 29. See, also, State v. Staton, 133 N.C. 643, 45 S.E. 362. 2. It is contended by the learned counsel for defendant in a well-prepared brief ......
  • 41 S.E. 548 (N.C. 1902), State v. Ellsworth
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 20, 1902
    ...The solicitor followed a decision of this court which is exactly in point, and the judge properly denied the motion. State v. Tytus, 98 N.C. 705, 4 S.E. 29. This case has since been cited with approval in State v. Christmas, 101 N.C. 755, 8 S.E. 361. A witness testified that the defendants ......
  • Request a trial to view additional results