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

Citation:4 S.E. 29, 98 N.C. 705
Opinion Judge:DAVIS, J.
Party Name:STATE v. TYTUS.
Attorney:The Attorney General, for the State. No counsel contra.
Case Date:November 28, 1887
Court:Supreme Court of North Carolina

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

98 N.C. 705




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, as was said in State v. Harper, 64 N.C. 129, and State v. Stanton, 1 Ired....

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