64 N.C. 129 (N.C. 1870), State v. Harper

• Citation: 64 N.C. 129
• Opinion Judge: SETTLE, J.
• Party Name: STATE v. HARPER.
• Attorney: No Counsel for the appellant. Attorney-General, contra.
• Judge Panel: PER CURIAM
• Court: Supreme Court of North Carolina

Page 129

64 N.C. 129 (N.C. 1870)

STATE

v.

HARPER.

Supreme Court of North Carolina.

January Term, 1870

From the rule, that in indictments upon statutes it is safe to use the v ery words of the statute, are to be excepted cases in which a statute (in enumerating offences, charging intent, & c.) uses the disjunctive or. In some such cases and is to be substituted for or: in others, doubts as to the proper terms are to be met by using several counts; and or is never used, unless in the statute it means to-wit, or is surplusage: Therefore,

An indictment for larceny, which charges the thing taken, to be the property of J. R. D. " and another or others, " (in the words of Rev. Code, c. 35, s. 19) is fatally defective, and no judgment can be given thereupon.

( State v. Haney, 2 D. & B. 390, cited and approved.)

LARCENY, tried before Thomas, J., at Fall Term 1869 of GREENE Court.

The prisoner was convicted. His counsel thereupon moved to arrest judgment, because the indictment charged the property in the thing stolen, to be in " John R. Dail and another, or others." This motion was refused, and the defendant appealed.

No Counsel for the appellant.

Attorney-General, contra.

SETTLE, J.

" In any indictment wherein it shall be necessary to state the ownership of any property whatsoever, whether real or personal, which shall belong to, or be in the possession of more than one person, whether such persons be partners in trade, joint-tenants, or tenants in common, it shall be sufficient to name one of such persons, and state such property to belong to the person so named, and another, or others, as the case may be." Rev. Code, ch. 35, sec. 19.

Before the passage of this Act, which is a copy of 7 Geo. 4 ch. 64, sec. 14, it was necessary, where the goods stolen were the property of several persons, to name all the partners or joint-owners correctly in the indictment. A failure to do so would have been fatal. How far has this Act changed or modified the common law?

It creates no new offence, but only relaxes to a certain extent, that degree of certainty and particularity heretofore required, in charging the ownership of stolen property.

As a general rule, it is sufficient in framing an indictment upon a statute, to use the very words of the statute, but this rule is not without exception, for where a...