State v. Bryant

• Decision Date: 06 December 1892
• Citation: 16 S.E. 326,111 N.C. 693
• Parties: STATE v. BRYANT.
• Court: North Carolina Supreme Court

16 S.E. 326

111 N.C. 693

STATE v. BRYANT.

Supreme Court of North Carolina

December 6, 1892

Appeal from superior court, Mitchell county; ARMFIELD, Judge.

Indictment under Code, § 1063, ^[1] for removing, altering, and defacing a landmark, which, on motion, was quashed at fall term, 1892 of Mitchell superior court, by ARMFIELD, J. The indictment is substantially as follows: The jurors, etc., present that Nick Bryant, etc., with force and arms, etc., willfully and unlawfully did alter, deface, and remove a certain landmark to wit, a corner tree, the property of etc., against the form of the statute, etc. From the judgment of the court quashing the indictment the solicitor for the state appealed.

Since the statute, which makes it a misdemeanor to "willfully or fraudulently" remove, alter, or deface any landmark creates by the use of the disjunctive the two distinct offenses of willfully removing and fraudulently removing, an indictment which charges defendant with "willfully and unlawfully" removing such a landmark is sufficient without also alleging that it was fraudulently done.

The Attorney General, for the State.

AVERY J.

There is nothing in the record from which we can gather the reasons that led the court below to quash the indictment, and we have therefore critically examined it, with the aid of the suggestions made by the attorney general, in order to discover, if possible, a fatal defect of any kind. Though the general rule is that a proviso contained in the same section of the law (Code, § 1063) in which the offense is defined must be negatived, yet where the charge itself is of such a nature that the formal statement of it is equivalent in meaning to such negative averment, there is no reason for adhering to the rule, and such a case constitutes an exception to it. It would have been manifestly absurd to require the prosecuting officer, after the charge that the defendant "willfully and unlawfully did alter, deface and remove a certain landmark, to wit, a corner tree," etc., to add, in blind obedience to supposed precedent, the words, "the said corner not being then and there a creek or other small stream, which the interest of agriculture might require to be altered or turned from their channels." It goes without saying that a corner tree is neither a creek nor a small stream. It is usually safe to follow the words of the statute, as the draughtsman has done in this case. State v....