State v. Hefner
| Decision Date | 26 November 1901 |
| Citation | 40 S.E. 2,129 N.C. 548 |
| Parties | STATE v. HEFNER. |
| Court | North Carolina Supreme Court |
SODOMY—OVERT ACT—INDICTMENT— SUFFICIENCY.
An indictment charging defendant with an attempt to commit the crime against nature with a beast is insufficient, in the absence of a charge of an overt act constituting the attempt.
Appeal from superior court, Catawba county; Councill, Judge.
Arthur Hefner was convicted of buggery. The indictment for buggery alleged that "the jurors, " etc., "present that Arthur Hefner, " etc., "with force and arms, at and in the county aforesaid, did unlawfully, willfully, and feloniously, abominably, and detestably, attempt to commit the crime against nature with a beast, to wit, a cow, against the form of the statute, " etc. Verdict of guilty. Defendant moved in arrest of judgment, for that the indictment failed to charge any overt act constituting the alleged attempt, and that in an indictment for an attempt to commit a felony some overt act must be charged. Motion sustained, and the solicitor for the state appealed. Affirmed.
Brown Shepherd, for the Attorney General for the State.
Self & Whitener, for appellee.
His honor did not err in sustaining the motion in arrest. When an attempt is charged it is necessary that some act constituting such attempt should be laid, as the attempt is not per se indictable, andneeds extraneous facts to make It the subject of an indictment. Whart Cr. Pl. (9th Ed.) § 159. In State v. Colvin, 90 N. C. 717 (), the court says: "From an investigation of the authorities upon the subject, our conclusion is that, to warrant the conviction of a defendant for such an offense, it is essential that the defendant should have dona some act intended, adapted, approximating, and in the ordinary and likely course of things would result in the commission of a particular crime, and this must be averred in the indictment and proved." In State v. Brown, 95 N. C, on page 688, the court cites with approval 2 Whart Cr. Law, § 2703: " 'Attempt' Is a term peculiarly indefinite;'' and adds, "And consequently the facts which develop the attempt should be set out so as to show that the attempt is itself criminal." In State v. Crews, 128 N. C. 581, 582, 38 S. E. 293, the court, in citing with approval State v. Colvin, supra, says: "This is not an attempt to commit another crime, in which case the overt act must be charged." The principle being well established, we deem it unnecessary to...
To continue reading
Request your trial
-
State v. Surles
...524, 31 S.E.2d 531; State v. Addor, 183 N.C. 687, 110 S.E. 650, 22 A.L.R. 219; State v. Hewett, 158 N.C. 627, 74 S.E. 356; State v. Hefner, 129 N.C. 548, 40 S.E. 2; State v. Colvin, 90 N.C. 717, 718; 16 C.J. 113; 22 C.J.S, Criminal Law, § 75. "An indictable attempt, therefore, consists of t......
-
State v. Surles
...524, 31 S.E.2d 531; State v. Addor, 183 N.C. 687, 110 S.E. 650, 22 A.L.R. 219; State v. Hewett, 158 N.C. 627, 74 S.E. 356; State v. Hefner, 129 N.C. 548, 40 S.E. 2; v. Colvin, 90 N.C. 717, 718; 16 C.J. 113; 22 C.J.S., Criminal Law, s 75. 'An indictable attempt, therfore, consists of two imp......
-
State v. Donovan
... ... wrongdoer. The averment ("did forcibly attempt to ... rescue," in exact language of the statute) was held ... insufficient. U.S. v. Ford (D. C.) 34 F. 26 ... It is ... necessary that all the facts which develop the attempt be set ... out in the indictment. State v. Hefner, 129 N.C ... 548, 40 S.E. 2; Beale's Cr. Pl. 140-197; U.S. v ... Wardell (C. C.) 49 F. 914; U.S. v. Potter (C ... C.) 56 F. 83; Ledbetter v. U.S. 170 U.S. 606, ... 18 S.Ct. 774, 42 L.Ed. 1162; U.S. v. Carll, 105 U.S ... 611, 26 L.Ed. 1135; Rivers v. State, 97 Ala. 72, 12 ... As ... ...
-
State v. Donovan
... ... The averment ("did forcibly attempt to rescue," in exact language of the statute) was held insufficient U. S. v. Ford (D. C.) 34 Fed. 26 ... It is necessary that all the facts which develop the attempt be set out in the indictment. State v. Hefner, 129 N. C. 548, 40 S. E. 2; Beale's Cr. Pl. 140-197; U. S. v. Wardell (C. C.) 49 Fed. 914; V. S. v. Potter (C. C.) 56 Fed. 83; Ledbetter v. U. S., 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; Rivers v. State, 97 Ala. 72, 12 South. 435 ... ...