State v. Harper
| Decision Date | 31 January 1870 |
| Citation | 64 N.C. 129 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. HARPER. |
An indictment for larceny, which charges the thing taken, to be the property of J. R. D. “ and another or others,” (in the words of Rev. Code, c. 35, s. 19) is fatally defective, and no judgment can be given thereupon.
( State v. Haney, 2 D. & B. 390, cited and approved.)
LARCENY, tried before Thomas, J., at Fall Term
1869 of GREENE Court.
The prisoner was convicted. His counsel thereupon moved to arrest judgment, because the indictment charged the property in the thing stolen, to be in “John R. Dail and another, or others.” This motion was refused, and the defendant appealed.
No Counsel for the appellant .
Attorney-General, contra .
“In any indictment wherein it shall be necessary to state the ownership of any property whatsoever, whether real or personal, which shall belong to, or be in the possession of more than one person, whether such persons be partners in trade, joint-tenants, or tenants in common, it shall be sufficient to name one of such persons, and state such property to belong to the person so named, and another, or others, as the case may be.” Rev. Code, ch. 35, sec. 19.
Before the passage of this Act, which is a copy of 7 Geo. 4 ch. 64, sec. 14, it was necessary, where the goods stolen were the property of several persons, to name all the partners or joint-owners correctly in the indictment. A failure to do so would have been fatal. How far has this Act changed or modified the common law?
*2 It creates no new offence, but only relaxes to a certain extent, that degree of certainty and particularity heretofore required, in charging the ownership of stolen property.
As a general rule, it is sufficient in framing an indictment upon a statute, to use the very words of the statute, but this rule is not without exception, for where a statute, in enumerating offences, charging intent, &c., uses the disjunctive or, it is common to insert the conjunctive and in its stead, in the bill of indictment, for alternative or disjunctive allegations make the bill bad for uncertainty.
True, cases may be found where or has been used in the sense of to-wit, and hence there was no objection; and in others it has been rejected as surplusage, but these cases are rare and form the exception, not the rule.
Sometimes it will not do to use either. In State v. Haney, 2 D. & B. 390, which was an indictment for stealing a slave, one of the exceptions was, that the indictment did not set forth the offence as described by the statute; it charging the seduction to be, “with an intention to sell, dispose of and...
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State v. Abraham
...injury to someone other than the true victim, the Court held a fatal variance existed. Id. at 468, 125 S.E.2d at 924. See State v. Harper, 64 N.C. 129, 131 (1870) ("A variance or omission in the name of the person injured is more serious than a variance in the name of the Here the indictmen......
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State v. Sellers, 254
...views which may be presented by the evidence, but alternative allegations in the same count make it bad for uncertainty.' State v. Harper, 64 N.C. 129.' State v. Knight, 261 N.C. 17, 134 S.E.2d 101, was a criminal prosecution on a three-count indictment charging the defendants with (1) non-......
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State v. Albarty
...42 C.J.S., Indictments and Infomations, § 101. See, also, in this connection: State v. Williams, 210 N.C. 159, 185 S.E. 661; State v. Harper, 64 N.C. 129; United States v. Buckner, 2 Cir., 118 F.2d 468; Price v. United States, D.C., 11 F.2d 283; United States v. Dedof, D.C., 42 F.Supp. 57; ......
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State v. Woody
...the true victim." Id. (citing State v. Overman, 257 N.C. 464, 125 S.E.2d 920 (1962)). The Abraham Court relied in part on State v. Harper, 64 N.C. 129, 131 (1870), which stated, "[a] variance or omission in the name of the person injured, is more serious than a variance in the name of the W......