State v. Jones

• Decision Date: 21 September 1955
• Citation: 89 S.E.2d 129,242 N.C. 563
• Court: North Carolina Supreme Court

Page 129

89 S.E.2d 129

242 N.C. 563

STATE, v. Ennis JONES.

No. 74

Supreme Court of North Carolina.

Sept, 21, 1955

Wm. B. Rodman, Jr., Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Harvey W. Marcus, Raleigh, Member of Staff, for the State.

Robert G. Bowers, Bayboro, for defendant, appellee.

DENNY, Justice.

From an examination of the record in this cause we are unable to ascertain whether the court sustained the motion to quash on the ground that the ordinance of the Board of Health of Pamlico County is unconstitutional, or upon the ground that the offense charged in the respective counts in the bill of indictment is alleged in the alternative. Therefore, in conformity with the well established rule of appellate courts, we will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the court belows. In re Parker, 209 N.C. 693, 184 S.E. 532. Moreover, appellate courts will not pass upon constitutional questions, even when properly presented, if there be also present some other ground upon which the case may be decided. State v. Lueders, 214 N.C. 558, 200 S.E. 22; Reed v. Madison County, 213 N.C. 145, 195 S.E. 620; State v. Ellis, 210 N.C. 166, 185 S.E. 663; In re Parker, supra.

Therefore, the quiestion for determination on this appeal is simply this: Should the bill of indictment, charging that the defedant did unlawfully and wilfully build or install a septic tank and nitrification or tile bed for said septic tank, without procuring a permit and having the tank inspected as required by law, be quashed on the ground that the offense charged is alleged in the alternative? 'The general rule is well settled that an indictment or information must not charge a party disjunctively or alternatively in such manner as to leave it uncertain what is relied on as the accusation against him. * * * As a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative. But where terms laid in the alternative are synonymous, the indictment is good; and where a statute in defining an offense, uses the word 'or' in the sense of 'to-wit,' that is, in explanation of what precedes, making it signify the same thing, the indictment may follow the words of the statute. An indictment is not vitiated by an alternative statement in matter which may be rejected as surplusage.' 31 C.J., Indictments and Informations, section 181, page 663, et seq. 42 C.J.S., Indictments and Informations, § 101.

In State v. Van Doran, 109 N.C. 864, 14 S.E. 32, this Court held that the use of the words 'practice, or attempt to practice' did not vitiate the indictment, and that the use of 'or' is 'only fatal when the use of it renders the statement of the offense uncertain, and not so when one term is used is used only as explaining or illustrating the other * * *.' State v. Ratliff, 170 N.C. 707, 86 S.E. 997; State v. Loesch, 237 N.C. 611, 75 S.E.2d 654.

Webster defines the word 'build' as meaning 'to erect or construct, as a dwelling place; hence, to form by uniting materials into a regular structure.' He also defines the word 'install' as meaning 'to set up or fix, as a lighting system, for use or service.'

The ordinance creating the offense charged in the instant case states that it shall be unlawful to 'build or install a septic tank under the provisions thereof without first obtaining a permit from the Health Officer or his duly authorized agent.' It also prohibits the covering up of said septic tank until the same shall have been inspected and approved by the Pamlico County Health Department.

In our opinion, any distinction that may be drawn between the words 'build' and 'install'...