State v. Barnes, 441

• Decision Date: 20 January 1961
• Docket Number: No. 441,441
• Citation: 253 N.C. 711,117 S.E.2d 849
• Court: North Carolina Supreme Court
• Parties: STATE, v. C. S. BARNES, Jr.

Page 849

117 S.E.2d 849

253 N.C. 711

STATE, v. C. S. BARNES, Jr.

No. 441

Supreme Court of North Carolina.

Jan. 20, 1961

T. W. Bruton, Atty. Gen. and Harry W. McGalliard, Asst. Atty. Gen., for the State.

I. Beverly Lake and Ellis Nassif, Raleigh, for defendant, appellant.

PARKER, Justice.

First Warrant--Assault Case.

Margaret Matthews, mother of the children Linda, Dorothy and Joanne Matthews named in the second warrant, testified as a witness for the State that on 18 May 1959 in the yard of her home the defendant, C. S. Barnes, Jr., pointed a gun at her.

The word gun is a generic term and includes pistol. According to Webster's New International Dictionary, 2d Ed., the word 'gun' is defined, '6. A revolver or pistol. Orig., Western U. S.' In common usage the words 'pistol' and 'gun' are used interchangeably. Muse v. Interstate Life & Accident Co., 45 Ga.App. 839, 166 S.E. 219; State v. Christ, 189 Iowa 474, 177 N.W. 54; State v. Barrington, 198 Mo. 23, 95 S.W. 235. There is nothing in the record or in defendant's brief to suggest that the weapon defendant pointed at Margaret Matthews was not a pistol. Her testimony was sufficient to carry the case to the jury on the first warrant, as tending to show a violation of G.S. § 14-34--assault by pointing gun or pistol. There is nothing in the record, or in defendant's assignments of error, or in his brief to justify a discussion or a new trial in the assault case. Defendant's brief discusses only the case charged in the second warrant. In the trial of the assault case, which assault is charged in the first warrant, we find no error.

Second Warrant--Obscene Pictures.

Defendant, in apt time, moved orally to quash the second warrant before pleading to it. State v. Perry, 248 N.C. 334, 103 S.E.2d 404. The court overruled the motion, and defendant excepted.

Defendant challenges the sufficiency of the second warrant to inform him of the accusation against him. A motion to quash is a proper method of testing the sufficiency of a warrant or an indictment to charge a criminal offense. State v. Greer, 238 N.C. 325, 77 S.E.2d 917; State v. Scott, 241 N.C. 178, 84 S.E.2d 654.

The Constitution of North Carolina, Article I, § 11, guarantees that in all criminal prosecutions every person has the right to be informed of the accusation against him.

Similar provisions in the U. S. Constitution (which are not a restriction on the States in this respect, 42 C.J.S. Indictments and Informations § 90, p. 957), and in the Constitutions of the various States, which are a substantial redeclaration of the common law, are one of the chief glories of the administration of the criminal law in our courts, for they are in strict accord with our inherited and 'traditional notions of fair play and substantial justice.'

This Court said in State v. Greer, supra: 'The authorities are in unison that an indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provisions is: (1) such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged, (2) to protect the accused from being twice put in jeopardy for the same offense, (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case.' [238 N.C. 325, 77 S.E.2d 919].

'It is an essential of jurisdiction that a criminal offense shall be sufficiently charged in a warrant or an indictment.' State v. Nugent, 243 N.C. 100, 89 S.E.2d 781, 783.

'An indictment or information for having in possession, exhibiting, or offering for sale an obscene drawing or picture need not particularly describe in what the obscenity consists, and the obscene matter need not be set up; but good pleading requires that, if a copy of the pictures is not given, such a description as decency permits should be given, and then the indictment should contain an averment that the pictures are too obscene, lewd, or lascivious for further description or recital.' 67 C.J.S. Obscenity § 11, b, Pictures, p. 36.

'The rule requiring that the article or matter shall be so described as to be capable of identification does not require that the indictment shall go into detail in describing a picture, or that it must set out the substance of an obscene article. To do this would be as objectionable as setting out the article or matter itself, the placing of which on the records the indictment seeks to excuse on account of its gross obscenity. All that is required is that the article shall be so described as to render it capable of identification.' 33 Am.Jur., Lewdness, Indecency and Obscenity, § 18, In Prosecution for Obscenity, p. 26. To the same effect see Joyce on Indictments, 2nd Ed., Sections 421, 422 and 423.

Commonwealth v. Sharpless, 2 Serg. & R., Pa., 91, 7 Am.Dec. 632, was an indictment for exhibiting an obscene picture. There was a motion for arrest of judgment on the ground that the picture is not sufficiently described in the indictment. The indictment described the picture as 'a certain lewd, wicked, scandalous, infamous, and obscene painting, representing a man in an obscene, impudent, and indecent posture with a woman.' The description was held sufficient, and the motion in arrest of judgment was overruled.

In Reyes v. State, 34 Fla. 181, 15 So. 875, defendant was convicted of improperly printing books and pamphlets, in violation of Rev.St., § 2620. The indictment charged that defendant did 'print, publish, and distribute certain printed and written paper containing obscene language and an obscene figure or picture, manifestly tending to the corruption of the morals of youth.' Defendant moved in arrest of judgment on the ground that the indictment was insufficient, for the reasons, inter alia, that it did not apprise him of the true character of the charge so as to enable him to prepare his defense, and was not sufficient to protect him from a second prosecution for the same offense. The Court in holding that the motion should have been granted, and judgment arrested said: 'The indictment wholly fails to set out in haec verba, or to give any description whatever of, the alleged 'printed and written paper containing obscene language and an obscene figure or picture,' which it charges the defendant with printing, publishing, and distributing. The authorities are practically unanimous that such an indictment is insufficient.'

In Vannoy v. State, 94 Fla. 1175, 115 So. 510, the indictment did not set out the 'printed paper containing obscene prints, figures, and pictures' by any certain description, or give any excuse for failure to do so. The Court reversed the lower court on authority of Reyes v. State, supra.

In Thomas v. State, 103 Ind. 419, 2 N.E. 808, 813, the Court said: 'It has been many times held, and it seems to be now the general American doctrine, that in a case like this the obscene book or paper need not be set out in the indictment if it be properly described, and the indictment contains the averments that it is so obscene that it would be offensive to the court, and improper to be placed on the records thereof, and that, therefore, the grand jury did not set it forth in the indictment.'

Commonwealth v. Wright, 139 Mass. 382, 1 N.E. 411, was an indictment for publishing and distributing a printed paper containing obscene, indecent, and impure language. In both counts it is alleged to be a paper so obscene in its character that it cannot with decency be spread upon the records of the court. No general description of it by title or contents is given in the indictment, nor are any other means afforded thereby which would distinguish it from any other paper of its class. Before trial defendant moved to quash the indictment, among other reasons, because it afforded no proper description of the alleged obscene paper. The Court in sustaining the exception and quashing the indictment said: 'But, while the indecent publication need not be set forth at length, and it is sufficient in the indictment to allege, as an excuse for not doing so, its scandalous and obscene character, it must be identified by some general description which shall show what the paper is which the defendant is charged with publishing. Unless this is done, it is obvious that the defendant is...