State v. Allen

• Decision Date: 30 June 1873
• Citation: 69 N.C. 23
• Court: North Carolina Supreme Court
• Parties: STATE v. HENDERSON ALLEN.

69 N.C. 23

STATE

v.HENDERSON ALLEN.

Supreme Court of North Carolina.

June Term, 1873.

An indictment under the Act of 1868-69, chap. 253, (Batt e's Revisal, chap. 32, sec. 95,) for killing live stock under certain circumstances, which charges that the defendant on &c., at &c., “A certain mule of the value of one hundred dollars, the property of one J. S. E., the said mule being then and there within an inclosure not surrounded by a lawful fence, unlawfully and wilfully did abuse, injure and kill contrary,” &c., is sufficient, though it would have been more satisfactory if it had stated whose the inclosure was, whether the defendant's, or some other person.

This was an INDICTMENT under the Act of 1868-'69, chap. 253, (Battle's Revisal, chap. 32, sec. 95,) in the following words, “That Henderson Allen, on &c., at &c., a certain mule of the value of one hundred dollars, the property of one John S. Ellis, the said mule being then and there within an inclosure not surrounded by a lawful fence, unlawfully and wilfully did abuse, injure and kill contrary,” &c. Upon the trial at the Fall Term, 1872, of the Superior Court of GRANVILLE county, before his Honor, Watts, J., the Court, among other things, instructed the jury that it was a violation of the statute referred to for a person wilfully to abuse, injure and to kill a mule the property of another in any inclosure whatever or whomsoever, not surrounded by a lawful fence, and such person would be guilty under the said statute, to which the defendant excepted. The jury found him guilty, and his counsel thereupon moved first, for a new trial for misdirection, which being refused, at Spring Term, 1873, of said Court, before his Honor, Albertson, J., to which Term defendant was bound over, he moved in arrest of judgment, because of the uncertainty, informality and insufficiency of the indictment. This motion was also overruled and a judgment pronounced, from which the defendant appealed.

No counsel for the defendant.

Attorney General Hargrove and Edwards, for the State , referred to the case of State v. Staton, 66 N. C. Rep. 640.

READE, J.

1. The defendant moved for a new trial for “misdirection,” without stating in what the misdirection consisted. The case states that his Honor, “among other things, charged the jury that it was a violation of the statute referred to in the indictment for a person wilfully to abuse, injure and kill a mule the property of another in any inclosure whatever,...