State v. Arnold

• Decision Date: 18 October 1890
• Court: North Carolina Supreme Court
• Parties: State. v. Arnold.

11 S.E. 990

107 N.C. 861

State.

v.Arnold.

Supreme Court of North Carolina.

Oct. 18, 1890.

Indictment for Murder—Forms.

1. The word "willful" is not essential to the validity of an indictment for murder, neither at common law nor under chapter 58, Acts 1887. State v. Kirkman, 104 N. C. 911, 10 S. E. Rep. 812, and State v. Harris, 106 K. C. 682, 11 S. E. Rep. 877, cited and approved.

2. Forms of indictment for murder and manslaughter approved.

(Syllabus by the Court.)

This was an indictment for murder tried before Whitaker, J., and a jury, at spring term, 1890, of Washington superior court. The indictment was in the following words: "The jurors for the state upon their oaths present that Lloyd Arnold, late of the county of Washington, on the 9th day of June, 1889, at and in said county, with force and arms, In and upon one Sarah Arnold, then and there, in the peace of God and the state, being, unlawfully and feloniously, did make an assault; and the said Lloyd Arnold then and there the said Sarah Arnold, unlawfully, feloniously, and of his malice aforethought, did kill and murder, contrary to the statute in such case made and provided and against the peace and dignity of the state. " The defendant was convicted of manslaughter, and moved in arrest of judgment, on the ground that " the indictment failed to allege that the killing and murder was done ' willfully' as required by chapter 58, Acts 1887." The motion was overruled and defendant excepted. Sentence having been pronounced on the verdict, the defendant appealed.

The Attorney General, for the State.

Clark, J. The books of forms and precedents usually insert the word, "willfully, " and sometimes the word " unlawfully, " before the words "feloniously and with malice aforethought, " in indictments for murder. While there are numerous decisions that the words "feloniously, " "with malice aforethought, " and "murder" are essential to the validity of such indictments, and that their place cannot be supplied by the use of any other words, it is not so as to the words " willfully" and "unlawfully." 1 Hale, P. C. 466; Heydon's Case, 4 Coke, 41a; 2 Bish. Crim. Proc. § 546. Indeed it has been expressly held that the latter words are not necessary, the reason assigned being that, unlike the other words above quoted, " willfully" and "unlawfully" are not "sacramental words." State v. Harris, 27 La. Ann. 572. The real reason however, probably, us suggested by Mr. Bishop, (2 Crim. Proc. §§ 543-547,) is not that there is any magic quality in one set of words and not in others, nor because they have no synonyms, as has been held, but because, by the statute, (1 Edw. VI., enacted 1547,) benefit of clergy was taken away from those convicted of murder committed"feloniouslyandof malice aforethought, " (omitting the additional word "willfully, " which had been used in the prior statute of 23 Hen. VIII.,) and since, and by virtue of that act, murder has been a capital felony. Being an act increasing the punishment, the courts have always restricted the capital felony to those homicides which were charged, in the exact language of the statute, as committed "feloniously and of malice aforethought. " Aside from this, the words " willfuly and unlawfully" are tautological, for a slaying, which is done "feloniously and with malice aforethought, " must necessarily be committed " willfully and unlawfully. " The defendant upon this bill of indictment well knew he was charged with the " willful" slaying of the deceased, and has been put to no disadvantage. Chapter 58, Acts 1887, does not require, as defendant's motion premises, any set words to be used. The act is a substantial copy of 24 & 25 Vict. c. 100, and its object is correctly set out in the caption, " An act to simplify indictments." It creates no offense. It declares an indictment containing certain words "sufficient, " but it does not make those...