State v. Boon

• Decision Date: 31 August 1857
• Citation: State v. Boon, 4 Jones 463, 49 N.C. 463 (N.C. 1857)
• Court: North Carolina Supreme Court
• Parties: STATE v. SAMUEL BOON.

4 Jones (NC) 463

49 N.C. 463

STATE

v.SAMUEL BOON.

Supreme Court of North Carolina.

August Term, 1857.

*1 In an indictment for cheating by false tokens, in obtaining an article of property from a person by means of a counterfeit piece of coin, to wit, a counterfeit quarter of a dollar, it is not material to aver to what currency the coin, intended to be counterfeited, belonged.

Nor is it necessary to aver that the spurious coin used, was made like the one alleged to be imitated, the word “counterfeit” being a sufficient allegation of that fact.

Where the indictment charged that the article was obtained by means of a false coin, it was not necessary to aver, that this was done by passing it.

Nor, in such an indictment, is it necessary to allege the value of the thing obtained, or to aver that it was of any value, if it be a thing recognised as property.

Nor is it necessary to aver that the thing obtained, was the property of the person from whom it was alleged to have been obtained.

If the last objection had been otherwise good, it would have been obviated by the statute; Rev. Code, ch. 35, sec. 14.

THIS was INDICTMENT for CHEATING by false tokens, tried before CALDWELL, Judge, at the Spring Term, 1857, of Yancy Superior Court.

The indictment was as follows:

“The jurors for the State, upon their oath, present, that Samuel Boon, late of the county of Yancy, being an evil disposed person, and wickedly designing, and intending to cheat one Mary Wilhite, on the 18th day of October, in the year 1856, with force and arms, at, and in the said county knowingly and designedly, by means of a certain false token, to wit, by means of a quarter of a dollar, which the said Samuel well knew to be counterfeit, did, then and there, obtain from the said Mary Wilhite, one piece of gingerbread, with intent to cheat and defraud the said Mary Wilhite, against the form of the statute, in such case made and provided, and against the peace and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present that the said Samuel Boon, on the day and year aforesaid, with force and arms, at, and in the county aforesaid, feloniously, knowingly, and designedly did obtain from the said Mary Wilhite, by means of a false token, to wit, by means of a counterfeit quarter of a dollar, which the said Samuel Boon well knew to be counterfeit, one piece of gingerbread, with intent to cheat and defraud the said Mary Wilhite, against the form of the statute in such case made and provided, and against the peace and dignity of the State.

And the jurors aforesaid do say, that the said Samuel Boon, in manner and form aforesaid, was guilty of fraud and deceit, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”

The defendant was convicted, and moved in arrest of judgment for defects in the bill of indictment, which motion, was overruled by his Honor, and judgment pronounced, from which the defendant appealed. The points discussed in this Court, are stated in the opinion of the Court.

Attorney General, for the State .

Edney, and Avery, for the defendant .

PEARSON, J.

*2 The verbiage, useless averment, and vain repetitions used in many of the forms of indictments, have become the subject of just remark, as tending to produce prolixity and confusion, instead of certainty, These excrescenses have creeped in, because most draftsmen, under cover of the maxim, utile per inutile non vitiatur, out of abundant caution, will use a word, make an averment, or a repetition, without stopping to decide upon its materiality, under the idea that, if it does no good, it will do no harm.

The solicitor, who drew the indictment, in State v. Fish, 4 Ire. Rep. 219, from which the present indictment was taken, seems to have made an experiment, to see how many of the averments, in the usual form of an indictment for “cheating by false tokens” could be dispensed with. The question is, whether he has left enough, or has trimmed too close.

Fish's case went off upon another point, and it did not become necessary to pass upon the sufficiency of the indictment; consequently it has no bearing, as an authority, on the present question, except to the extent of showing that the departure from the usual form, was not so clearly liable to objection as to induce the Court to remark upon it, to prevent its being followed as a precedent.

Several objections are now made to it:

1st. There is no averment as to the sort of a quarter of a dollar that the false token was made to counterfeit--whether metal or paper--Spanish milled, or Mexican--or a twenty-five cent piece of United States coin.

The averment is unnecessary. It was not material to ascertain the sort of money which the false token was made to counterfeit--the defendant's guilt in nowise depending on it, and the general averment, that it was a counterfeit quarter of a dollar, made the charge with sufficient certainty, to apprise the defendant of the specific act, for which he was then indicted, and to enable him, should he be so unfortunate as to fail in his defense, to plead his conviction in bar of a second prosecution. In 3 Bos. and Pul. 145, a case is cited by one of the Judges, in which a man was indicted for stealing a 5 l. note, without adding any further description, and the indictment was considered sufficient, notwithstanding the generality of the description. In State v. Rout, 3 Hawks' Rep. 618, an indictment for stealing one twenty dollar bank note on the State bank of North Carolina, was held sufficient, notwithstanding the description was general, and was erroneous in one particular, i. e., the name of the bank. The Court say, “A note on the State bank is as intelligible, as a note issued by the bank, and would be understood, in common acceptation, in the same sense; for it is a familiar mode of speech to say a note on a man, and is...