State v. Massey

• Decision Date: 21 May 1887
• Citation: 2 S.E. 445,97 N.C. 465
• Parties: STATE v. MASSEY.
• Court: North Carolina Supreme Court

2 S.E. 445

97 N.C. 465

STATE v. MASSEY.

Supreme Court of North Carolina

May 21, 1887

Appeal from superior court, Lincoln county.

Motion to quash indictment for burning a mill and church granted by the lower court, from which the state appeals.

The Attorney General, for the State.

Bynum Hoke & Devereux, for defendant.

MERRIMON J.

The indictment charges in several counts that the defendant on the first day of April, 1885, "unlawfully and maliciously and feloniously did set fire to" a certain mill, "with intent thereby to injure and defraud" certain corporations named in the various counts "contrary to the form of the statute," etc. It is founded either upon the statute, (Code, § 985, par. 6,) or upon it as amended by the subsequent one, (Acts 1885, c. 66.)

The defendant contends that this amendment repealed the material parts of the statute of which it is amendatory, and that the statute, as amended, took and had effect on the sixteenth day of February, 1885, the day of its ratification, which, it is conceded, was after the time of the commission of the offense charged, if, indeed, it was committed at all; and he moved to quash the indictment upon the ground that no offense under the amended statute is charged therein. The court allowed this motion, and gave judgment in favor of the defendant from which the state appealed to this court. For the reasons we now proceed to state, we are of opinion that the indictment was properly quashed.

The statute (Code, § 985, par. 6) provides that "whoever shall unlawfully and maliciously set fire to any church, chapel, or meeting-house, or shall unlawfully or maliciously set fire to any stable, coach-house, outhouse, ware-house, office, shop, mill, barn, or granary, or to any building or erection used in carrying on any trade or manufacture or any branch thereof, whether the same, or any of them, respectively, shall be in possession of the offender, or in the possession of any other person, with intent thereby to injure or defraud any person or persons, body politic, or corporation, shall be guilty of felony, and imprisoned in the penitentiary for not less than five nor more than forty years."

It seems that the intention of the pleader was to found the indictment upon this statute. If so, it cannot be sustained because, after the time the offense charged was committed, if at all, and before the indictment was found, the statute had been amended by a subsequent one, (Acts 1885, c. 66,) which struck out of it the words "unlawfully and maliciously" wherever they occurred, and substituted in their stead the words "wantonly and willfully," and likewise struck out the other words, "with intent thereby to injure or defraud any person or persons, body politic, or corporation," thus prescribing a...