State v. Hill
| Decision Date | 30 June 1878 |
| Citation | 79 N.C. 656 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. CHARLES HILL. |
INDICTMENT for injury to live stock under Bat. Rev., ch. 32, § 94, tried at February Term, 1878, of NEW HANOVER Criminal Court, before Meares, J.
The indictment contains two counts,--the first count charges that defendant unlawfully, wilfully, and maliciously injured a cow belonging to Lee Samuel, and concludes at common law; the second count charges that he did, unlawfully and on purpose, kill, maim and injure live stock running at large in the range, the property of Lee Samuel, and others whose names are unknown, and concludes as required in statutory offences. The defendant pleaded not guilty, and on the trial the following facts were found by the State:--.
Lee Samuel owned an ox which got into a cultivated field of the defendant under an insufficient fence, and the defendant was heard to make violent threats against him. The defendant afterwards on two several occasions beat the ox while grazing in the marsh, and gave him numerous heavy blows with a large stick, by reason of which the ox was disabled for work for more than a month. A witness testified that at another time the defendant ran a heifer out of his field and beat her with a stick.
After conviction the defendant moved for a new trial, and also in arrest of judgment, both of which motions were denied, judgment pronounced on the verdict, and the defendant appealed.Attorney General, for the State .
No counsel in this Court for defendant.
SMITH, C. J. (After stating the case as above.)
There are numerous exceptions taken to the form of indictment and to the sufficiency of the evidence to sustain its allegations:--
The first count is fatally defective at common law, in that, it fails to charge the injury to have been done to the cow, mischievously or from malice to the owner. State v. Scott, 2 Dev. & Bat. 35; State v. Helmes, 5 Ire. 364; State v. Jackson, 12 Ire. 329. Nor can it be sustained under the statute for want of an averment that it was “contrary to the form of the statute.”
There was no evidence that any cow was injured, belonging to Lee Samuel, and proof of the maltreatment of his ox does not support an allegation of maltreatment of his cow.
The running a heifer out of the field and beating her with sticks, with no proof of ownership, neither sustains the count nor constitutes a criminal offence.
The second count omits to charge an intent to drive the live stock from the range, or to injure the owner, or to impute any other unlawful intent. State v. England, 78 N. C. 552.
The live stock mentioned as the subject of the injury is alleged to be the property of Lee Samuel and others, while the testimony is that the ox belonged to Lee Samuel alone. This is a fatal variance, not cured by the provisions of Bat. Rev. ch. 33, § 65. This section dispenses with the naming of all but a single owner, and permits, where there are several owners, the others to be designated by the superadded words “and another,” or “and others,” as there may be one or more of them. If there had been two or more owners besides Lee Samuel, the allegation of...
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State v. Campbell
...to allow review under Rule 2 of Issue (4), and in accord with State v. Greene , 289 N.C. 578, 223 S.E.2d 365 (1976), and State v. Hill , 79 N.C. 656 (1878), we held that "a fatal variance exists because the evidence showed that the stolen property belonged to the church only." Campbell COA ......
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State v. Albarty
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State v. Campbell
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