State v. Miller

• Decision Date: 02 April 1888
• Citation: 5 S.E. 925,100 N.C. 543
• Parties: STATE v. MILLER.
• Court: North Carolina Supreme Court

5 S.E. 925

100 N.C. 543

STATE v. MILLER.

Supreme Court of North Carolina

April 2, 1888

Appeal from superior court, Rowan county; CLARK, Judge.

Defendant Miller, was indicted by the state of North Carolina, the appellant, for non-repair of a road of which he was overseer. The indictment was quashed, and the state appeals.

The Attorney General, for the State.

MERRIMON J.

The indictment charges, properly, that for a long while a specified part of a public road in the county of Rowan was in a ruinous condition, and greatly out of repair, etc., and it further charges "that, during all the said time, John Miller was overseer of the said high way from the corporation line of Salisbury to the township line of Salisbury township a distance of some three or four miles, the same constituting his section of said road, and then and there did unlawfully and negligently omit to amend and repair the said highway embracing his section, as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." It appears, from the case settled on appeal, that "after the jury were impaneled, and a plea of not guilty entered, on motion of the state a juror was withdrawn, and mistrial ordered. The counsel for the defendant then moved to quash the bill, on the ground--First, because it failed to allege the act as willfully done; second, because the bill fails to allege that it was the duty of the overseer to work the road. The court after the argument, adjudged that the motion be allowed. Bill quashed, and the defendant was discharged. From this judgment the state appealed to this court.

Generally and ordinarily, a motion to quash the indictment made by the defendant should not be allowed if made after the plea of not guilty; but such motion on the part of the state may be allowed at any time before the defendant has been actually tried upon the indictment. It seems, however, that the court has authority, to be exercised in its discretion, to allow the motion made by the defendant after his plea of not guilty, and there are cases in which such motion should be allowed at any time,--as where it appears, from the indictment, that the court has not jurisdiction. This objection may be taken by mere suggestion, or by motion, or the court may ex mero motu take notice of it. Neither consent nor waiver can give jurisdiction, and the court will not proceed where it appears, from the record, that it has no authority. State v. Eason, 70 N.C. 88; State v. Benthall, 82 N.C. 664; Archb. Crim. Pl. 62.

The defendant is indicted as overseer of a public road for a violation of the statute (Code, § 1054) which provides that "every overseer of a road who shall willfully neglect any of the duties imposed on him by law shall be guilty of a misdemeanor." An essential element of the...