State v. Banks

• Decision Date: 26 February 1958
• Docket Number: No. 75,75
• Citation: 247 N.C. 745,102 S.E.2d 245
• Parties: STATE, v. Anderson BANKS and Robert Allen.
• Court: North Carolina Supreme Court

Page 245

102 S.E.2d 245

247 N.C. 745

STATE, v. Anderson BANKS and Robert Allen.

No. 75

Supreme Court of North Carolina.

Feb. 26, 1958

George B. Patton, Atty. Gen., Ralph Moody, Asst. Atty. Gen., for the State.

Redden, Redden & Redden, Hendersonville, for defendant Anderson Banks.

I. C. Crawford, Asheville, for defendant Robert Allen.

JOHNSON, Justice.

In the bill of indictment the State attempts to charge the defendants with burning a building in violation of G.S. § 14-62. The bill merely charges the offense in the language of the statute. As to this, the rules are well stated in State v. Cox, 244 N.C. 57, 59, 92 S.E.2d 413, 415: '* * while it is a general rule prevailing in this State that an indictment for a statutory offense is sufficient if the offense be charged in the words of the statute, State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143, the rule is inapplicable where the words of the statute do not in themselves inform the accused of the specific offense of which he is accused so as to enable him to prepare his defense or plead his conviction or acquittal as a bar to further prosecution for the same offense, as where the statute characterizes the offense in mere general or generic terms, or does not sufficiently define the crime or set forth all its essential elements. In such situation the statutory words must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged.' See also State v. Helms, N.C., 102 S.E.2d 241.

In a statutory arson case like this one it is necessary to aver what building was burned by descriptive allegations showing not only that the structure comes within the class designated in the statute, but also fixing its identity with reasonable particularity so as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense. See 6 C.J.S. Arson § 20.

In State v. McKeithan, 203 N.C. 494, 166 S.E. 336, the defendant was tried and convicted under a two-count indictment, reading in part as follows: First count: '* * * the defendant did on March 5, 1932, feloniously aid, counsel, and procure one Curtis Smith feloniously to burn a dwelling house, the property of said defendant and one Campbell as tenants in common, contrary to the provisions of C.S. 4175 (now G.S. § 14-5).' Second count: '* * * the defendant, being tenant in common with one Campbell of a dwelling house, then insured against loss, did on March 5, 1932, feloniously procure one Curtis Smith to burn said dwelling house in violation of C.S. 4245 (now G.S. § 14-65).' The defendant requested the court to direct a verdict of not guilty, on the ground that the property was not described in the indictment with sufficient definiteness. He also demurred to the bill and moved to quash. Overruled; exception. On appeal to this Court it was held: 'The form of the indictment would seem sufficient. (Citation of authority.) The ownership of the house is properly laid in the defendant and Campbell as tenants in common. (Citation of authority.) The fact that these same parties own other houses in like capacity; is not grounds for demurrer or quashal. (Citation of authority.) Sufficient matter appears on the fact of the indictment to enable the court to proceed to judgment. (Citation of authority.) And the defendant could not be tried again for the same offense. (Citation of authority.) His plea of former conviction would easily avail in case of a second prosecution.'

In State v. Sprouse, 150 N.C. 860, 64 S.E. 900, 901, the indictment was in two counts. One charged the felonious burning of a stable and granary, 'than and there the property and in possession of William Sexton.' The second count charged a felonious attempt to burn the barn and stable 'of William Sexton.' The evidence revealed that title to the stable was in one Sprouse, who had rented to Sexton....