State v. Ballangee
| Decision Date | 05 May 1926 |
| Docket Number | 481. |
| Citation | 132 S.E. 795,191 N.C. 700 |
| Parties | STATE v. BALLANGEE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Caldwell County; Shaw, Judge.
H Ballangee was convicted for operating a lottery, and he appeals. Judgment arrested.
The defendant was indicted for operating a lottery, and upon the return of a special verdict he was adjudged guilty. From the judgment pronounced, he appealed.
W. C Newland, of Lenoir, for appellant.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.
The indictment charges that the defendant "unlawfully and willfully did operate a lottery, to wit, a slot machine (chapter 138, Pub. Laws 1923), against the form of the statute," etc. The statute provides:
3 C. S. § 4437(a).
Does the indictment charge a breach of this statute? An indictment shall be deemed to be sufficient in form if it express the charge against the defendant in a plain, intelligible, and explicit manner; and it will not be held defective by reason of any informality or refinement if the matter appearing therein be sufficient to enable the court to proceed to judgment. C. S. § 4623. The specific question is whether the purported breach as set out in the bill is "plain intelligible, and explicit." Chief Justice Ruffin suggested that an informality can embrace, perhaps, only the mode of stating the fact, but if the fact be one which essentially enters into the offense, it must be set forth ( State v. Moses, 13 N.C. 452, 464); and Judge Gaston observed that a refinement is understood to be the verbiage which is frequently found in indictments setting forth what is not essential to the constitution of the offense, and therefore not required to be proved (State v. Gallimon, 24 N.C. 372). But in each of these cases it was said in substance that the statute does not supply the omission of a distinct averment of any fact or circumstance which is an essential constituent of the offense charged. To the same effect is a uniform line of subsequent decisions. Every crime consists of acts done or omitted, and it is not sufficient to charge a defendant generally with the commission of a particular offense (unless the form of the indictment is prescribed by statute), but all the essential facts and circumstances must be specifically set forth. State v. Hathcock, 29 N.C. 52; State v. Eason, 70 N.C. 88; State v. Woody, 47 N.C....
To continue reading
Request your trial
-
State v. Johnson
... ... 662, Ind. and Inf., § 103; 50 C.J ... 810, Prostitution 25; State v. Liles, 78 N.C. 496; ... State v. Bragg, 86 N.C. 687; State v. Deal, ... 92 N.C. 802; State v. Watkins, 101 N.C. 702, 8 S.E ... 346; State v. Whedbee, 152 N.C. 770, 67 S.E. 60, 27 ... L.R.A., N.S., 363; State v. Ballangee, 191 N.C. 700, ... 132 S.E. 795; State v. Watkins, 200 N.C. 692, 158 ... S.E. 393; State v. Cole, 202 N.C. 592, 163 S.E. 594; ... United States v. Cruikshank, 92 U.S. 542, 2 Otto ... 542, 23 L.Ed. 588; United States v. Simmons, 96 U.S ... 360, 24 L.Ed. 819; United States v. Carll, 105 U.S ... ...
-
State v. Howley
...facts and circumstances essential to bring the case within the statutory definition of the offense must be specifically set forth. State v. Ballangee, supra, State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 143, and cases cited therein. The bill of indictment in the present case, when tes......
-
State Carolina v. Billinger
...intelligible, and explicit manner. State v. Sossamon, 259 N.C. 374, 376, 130 S.E.2d 638, 639 (1963) (quoting State v. Ballangee, 191 N.C. 700, 702, 132 S.E. 795, 795 (1926)). Accordingly, the State's failure to allege an essential element of the crime of conspiracy renders the indictment in......
-
State v. Barnett
...in original) (quoting State v. Sossamon, 259 N.C. 374, 376, 130 S.E.2d 638, 639 (1963) (in turn quoting State v. Ballangee, 191 N.C. 700, 702, 132 S.E. 795, 795 (1926))). In two recent decisions, State v. Harris, ––– N.C.App. ––––, 724 S.E.2d 633, and State v. Herman, ––– N.C.App. ––––, 726......