State v. Callett, 507.

• Decision Date: 28 April 1937
• Docket Number: No. 507.,507.
• Parties: STATE. v. CALLETT.
• Court: North Carolina Supreme Court

191 S.E. 27

211 N.C. 563

STATE.

v.CALLETT.

No. 507.

Supreme Court of North Carolina.

April 28, 1937.

Appeal from Superior Court, Mecklenburg County; J. A. Rousseau, Judge.

John Callett was convicted of buggery, and he appeals.

Reversed.

The defendant was tried on the following bill of indictment: "The jurors for the State upon their oath present, that: John Callett, late of the County of Mecklenburg, on the 16th day of December, 1936, with force and arms, at and in the County aforesaid, did unlawfully and willfully commit the abominable and detestable crime Against Nature, against the form of the statute andin such case made and provided against the peace and dignity of the State.---- The defendant entered a plea of not guilty. The verdict of the jury was as follows: "The jury, after having been duly sworn and empanelled, returned for their verdict, finds the defendant Guilty, with recommendation for mercy." Upon the verdict, the court below pronounced judgment.

The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones will be considered in the opinion.

A. A. Tarlton, of Charlotte, for appellant.

A. A. F. Seawell, Atty. Gen, and Harry M. McMullan, Asst. Atty. Gen, for the State.

CLARKSON, Justice.

At the close of the State's evidence and at the close of all the evidence, the defendant in the court below made motions to dismiss the action, or for judgment of nonsuit. C.S. § 4643. The court below overruled these motions, and in this we think there was error.

(1) The defendant was indicted for buggery, under C.S. § 4336. After a careful review of the evidence, we do not think it sufficient to have been submitted to the jury. State v. Goodson, 107 N.C. 798, 12 S.E. 329; State v. Montague, 195 N.C. 20, 141 S.E. 285; State v. Carter, 204 N.C. 304, 168 S.E. 204. Under the buggery statute, C. S. § 4336, supra, the crime is punishable as follows: "He shall be imprisoned in the state's prison not less than five nor more than sixty years."

(2) C.S. § 4171 is as follows: "A felony is a crime which is or may be punishable by either death or imprisonment in the state's prison. Any other crime is a misdemeanor."

Since all criminal offenses punishable with death or imprisonment in a state prison were by this section declared felonies, indictments wherein there has been a failure to use the word "feloniously, " as characterizing the charge in the latter class of cases, have been declared fatally defective. State v. Jesse, 19 N.C. 297; State v. Roper, 88 N.C. 656; State v. Skidmore, 109 N.C. 795, 14 S.E. 63; State v. Bryan, 112 N.C. 848, 16 S.E. 909; State v. Caldwell, 112 N.C. 854, 16 S.E. 1010; State v. Wilson, 116 N.C. 979, 21 S.E. 692; State v. Shaw, 117 N.C. 764, 23 S.E. 246; State v. Holder, 153 N. C. 606, 69 S.E. 66; State v. Goffney, 157 N.C. 624, 73 S.E. 162; State v. Brinkley, 191 N.C. 702, 132 S.E. 796. But this principle does not hold good where the Legislature otherwise expressly provides.

The indictment is fatally defective in not alleging "feloniously." As to the sufficiency of the bill in other respects, see State v. Ballangee, 191 N.C. 700, 132 S.E. 795. In the record is the following: "The defendant was called upon to plead to the Bill of Indictment before plea and before a jury was empanelled moved the Court to quash the Bill of...