State v. Mclain

• Decision Date: 16 December 1889
• Citation: 104 N.C. 894,10 S.E. 518
• Court: North Carolina Supreme Court
• Parties: State v. McLain.

10 S.E. 518

(104 N.C. 894)

State

v.McLain.

Supreme Court of North Carolina.

Dec. 16, 1889.

Escape—Indictment —Variance—Arrest op Judgment—Instructions.

1. Code N. C. § 1022, making it a misdemeanor for a sheriff, constable, or jailer to " willfully or negligently" permit any person in his custody to escape, intends to prescribe two distinct kinds of escape, —one that is willfully permitted; another that is negligently permitted; and an indictment charging that the escape was "unlawfully and negligently permitted" by defendant is good.

2. An indictment against a sheriff for permitting an escape charged that the capias against J. (defendant's prisoner) was issued on an indictment against J. and H. The evidence showed that the solicitor had drawn a bill against J., H., and W., which the grand jury returned "a true bill" as to J. and H., and "not a true bill" as to W. Held, that there was no variance.

8. A variance between the averments of an indictment and the proof is not available on a motion in arrest of judgment.

4. It is not error to charge that the jury should find defendant guilty, if they believe the evidence, when the evidence is not conflicting, and there are no variant aspects of it to be submitted.

Appeal from superior court, Jackson county; Clark, Judge.

Indictment for unlawfully and negligently permitting an escape. Defendant was convicted, and appeals.

The Attorney General, for the State.

Merrimon, C. J. The indictment charged that the defendant, while sheriff of the county of Jackson, duly had in his custody by virtue of proper process, a person named therein, charged with a misdemeanor, and that while such person was in his custody he" was unlawfully and negligently permitted to escape and go at large, whithersoever he would, " etc. Upon a verdict of guilty, the defendant moved in arrest of judgment upon the grounds— First, because the bill of indictment did not charge that the escape was " willful and negligent, " but merely "negligent and unlawful;" secondly, because the bill of indictment charged that the capias against J. C. Hooper had been issued upon an indictment against J. C. Hooper and Hill Hooper, whereas the solicitor, acording to the evidence, had drawn and sent a bill against J.C. Hooper, Hill Hooper, and W. M. Hooper, upon which the grand jury had returned the bill into court indorsed "A true bill "as to J.C. Hooper and Hill Hooper, and " Not a true bill" as to W. M. Hooper. The motion was denied, and the defendant excepted. It was assigned as error that the court instructed the jury that "they should find the defendant guilty, " if they believed the evidence. There was judgment against the defendant, from which he appealed to this court.

The statute (Code, § 1022) prescribes that " when any person charged with a crime or misdemeanor, or sentenced by the court upon conviction of any offense, shall be legally committed to any sheriff, constable, or jailer, or shall be arrested by any sheriff, deputy-sheriff, or coroner, acting as sheriff, by virtue of any capias issuing on a bill of indictment, information, or other criminal proceeding, and such sheriff, deputy-sheriff, coroner, constable, or jailer willfully or negligently shall suffer...