State v. McKnight

• Decision Date: 14 November 1928
• Docket Number: 371.
• Citation: State v. McKnight, 196 N.C. 259, 145 S.E. 281 (N.C. 1928)
• Parties: STATE v. McKNIGHT.
• Court: North Carolina Supreme Court

145 S.E. 281

196 N.C. 259

STATE v. McKNIGHT.

No. 371.

Supreme Court of North Carolina

November 14, 1928

Appeal from Superior Court, Guilford County; A. M. Stack, Judge.

Everett McKnight was convicted of larceny, and he appeals.Affirmed.

Criminal prosecution, tried upon an indictment charging that the defendant"on the 7th day of April, in the year of our Lord, one thousand nine hundred and twenty-seven with force and arms, at and in the County aforesaid, did unlawfully willfully, feloniously and forcibly assault Harry Moore with a deadly weapon, to wit: a pistol on or near a public highway in said County the said Harry Moore in bodily fear and danger of his life feloniously did put and did unlawfully willfully, forcibly and feloniously did steal, take and carry away $40.00 in good and lawful money the property of the Gulf Refining Company, against the form of the statute in such case made and provided and against the peace and dignity of the State."

Verdict Guilty of larceny.

After conviction, and before judgment, the defendant lodged a motion in arrest of judgment, for that he alleges the indictment is not sufficient to support a verdict of larceny.Overruled and exception.This is the defendant's only exception.

Judgment Imprisonment in the state's prison at hard labor for a term of not less than two and not more than three years.

Defendant appeals, assigning error, in that the court failed to arrest the judgment on motion duly made.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY C.J.

Judgment in a criminal prosecution may be arrested, on motion duly made, when, and only when, some fatal error or defect appears on the face of the record.State v. Lewis,194 N.C. 620, 140 S.E. 434;State v. Mitchem,188 N.C. 608, 125 S.E. 190;State v. Efird,186 N.C. 482, 119 S.E. 881;State v. Jenkins,164 N.C. 527, 80 S.E. 231;State v. Douglass,63 N.C. 500;State v. Roberts,19 N.C. 541.But this would not include a variance between the indictment and the proof, or want of evidence to support the verdict, for they are not matters appearing on the face of the record proper.State v. Jarvis,129 N.C. 698, 40 S.E. 220;State v. McLain,104 N.C. 894, 10 S.E. 518;McCanless Canless v. Flinchum,98 N.C. 358, 4 S.E. 359.

The indictment in the instant case includes, or is sufficient in form to charge, the offense of larceny.C. S. § 4640.Hence the motion in...