State v. Harwell
| Decision Date | 03 December 1901 |
| Citation | 40 S.E. 48,129 N.C. 550 |
| Parties | STATE v. HARWELL. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Catawba county; Councill, Judge.
One Harwell was indicted for crime. From an order quashing the indictment, the state appeals. Affirmed.
The following is the indictment: "The jurors," etc "present that Lawson Harwell," etc., "with force and arms, at and in the county aforesaid, unlawfully willfully, and feloniously did attempt to destroy the reputation of Miss Beulah Gaither, she being an innocent and virtuous woman, by calling her a damned bitch, and 'I have a quarter for you,' meaning thereby that she was incontinent,--this being said in the presence of third parties,--against the form of the statute," etc. Defendant moved to quash the indictment, for that it did not charge a criminal offense.
Brown Shepherd, for the State.
L. L Witherspoon, for appellee.
This is an indictment, under section 1113 of the Code, for the slander of an innocent woman. The statute provides "that if any person shall attempt, in a wanton and malicious manner, to destroy the reputation of an innocent woman," etc. And the bill of indictment charges that the defendant "unlawfully, willfully and feloniously did attempt to destroy the reputation of Miss Beulah Gaither, she being an innocent and virtuous woman, by calling her a damned bitch and 'I have a quarter for you,' meaning thereby that she was incontinent,--this being said in the presence of third parties." The defendant moved to quash the bill, which motion was allowed, and the state appealed.
The defendant puts his motion upon two grounds,--the insufficiency of the bill of indictment, and also upon the ground that the words spoken do not constitute a criminal offense under the statute. The words used are so offensive that they are calculated to create a feeling of resentment, and a disposition to say he deserves to be punished. And in such cases there is danger of yielding to a sentiment that leads us from that careful consideration of the law that the case is entitled to. Therefore, in order that we may not do this, it is necessary that we should examine carefully the precedents and reason of the thing.
The bill does not follow the language of the statute, as it should do; and, admitting that it has been held that bills for statutory offenses may be sustained without following the exact language of the statute, the words used must be the equivalent of the words of the statute. The word "feloniously" has no meaning in this indictment, as the offense created by the statute is only a misdemeanor, and not a felony, and the word "feloniously" must be treated as surplusage. The word "willfully" usually means "stubbornly," and here could not mean more than defendant intentionally used this language, and does not necessarily mean that he did so "in a wanton and malicious manner." The word "unlawfully" does not import "wanton and malicious manner." State v. Morgan, 98 N.C. 641. 3 S.E. 927; State v. Tweedy, 115 N.C. 704, 20 S.E. 183. But the ground was taken for the state upon the argument that, if the bill was defective in the manner pointed out, it was error in the court to quash; and State v. Flowers, 109 N.C. 841, 13 S.E. 718; State v. Skidmore, 109 N.C. 795, 14 S.E. 63; State v. Caldwell, 112 N.C. 854, 16 S.E. 1010; State v. Colbert, 75 N.C. 368,--were cited for this position. In the case of State v. Colbert it was held to be error to quash the bill. That case was for perjury, and the court said that in high crimes, such as treason and felony, it was error to quash the bill, as it released the bail, and the defendant might escape. And Flowers' Case, Skidmore's Case, and Caldwell's Case, all being felonies, followed Colbert's Case. And if it should be held that Colbert's Case, and the other cases cited, and following Colbert's Case, are correct, they are not authority for reversing the court in this case, which is not treason or felony, but only a misdemeanor. But, with the greatest respect for the learned court that decided Colbert's Case and the other following cases, we must say that they are not in harmony with the former opinions of this court, and that the reason given for the decision is not tenable,--"that the defendant might escape,"--as it was perfectly within the power of the court upon quashing the bill to hold the defendant until another bill could be sent. State v. Griffice, 74 N.C. 316; State v. Roach, 3 N. C. 352. In both of these cases the bill was quashed, and the defendant held to bail. In State v. Baldwin, 18 N.C. 195 (Gaston, J.), it is said that in indictments for heinous crimes it is not usual to quash. But the right to do so is entirely discretionary with the presiding judge, and he will not be reviewed, except as upon a writ of error, where he has quashed a good bill. In the case of State v. Roach, supra, it is said it is proper to quash when the court could not proceed to judgment. The law does not require a vain thing to be done, as it would be to try a defendant when the court could render no judgment upon a conviction. Though it is said in State v. Caldwell, supra that a motion to quash was properly overruled, but it was held to be proper to arrest the judgment after the defendant had been convicted. The bill, in our opinion, is defective, and the judgment of the court in quashing the bill of indictment must be sustained.
The language used by the defendant, though very offensive, is not, in our opinion, per se, criminal, under the statute. To constitute the offense for which the defendant is indicted he must have charged the prosecutrix with having had criminal intercourse, in direct terms, or in words equivalent to that. In State v. Moody, 98 N.C. 671, 4 S.E. 119, the defendant said the prosecutrix "had promised to let him have criminal connection with her, and he intended to have that thing." The court said this was not sufficient to constitute the crime, as it did not amount to saying that she had had criminal intercourse with him. In ...
To continue reading
Request your trial