State v. Morkis
| Decision Date | 09 December 1889 |
| Citation | 104 N.C. 837,10 S.E. 454 |
| Court | North Carolina Supreme Court |
| Parties | State v. Morkis. |
Criminal Law—Special Verdict—Indictment— Limitation.
1. On an indictment for killing a hog in an in-closure not surrounded by a lawful fence, where the jury return, as a special verdict, the facts asto the time of finding the indictment, and as to the commission of the offense, whereupon the court holds that the indictment is barred by limitation, and that defendant is not guilty, there must be a new trial, because the court must say, on the facts found, that they do or do not constitute the offense charged, and thereupon the verdict of the jury must be entered in accordance with the opinion of the court.
2. The sending of another indictment to the grand jury, at a term before the prosecution was barred, for the same offense, does not prevent the bar of the statute as to one sent subsequently, and after the lapse of sufficient time to bar the prosecution.
This was an indictment for killing a hog in an inclosure not surrounded by a lawful fence, tried at the fall term, 1889, of the superior court of Montgomery county, before James H. Merrimon, J. The jury returned the following special verdict: "The jury find the following facts as their special verdict, viz.: That in the month of January, two years prior to January, 1889, the defendant shot and killed the hog of W. S. Crawford, in a territory where the stock law does not prevail, and that it was shot near the residence of defendant's father, whose farm was within an inclosure including several farms, and, amongst others, the farm and land of the said W. S. Crawford; that the lands of the said Crawford and Morris, both within this neighborhood fence, but not a stock-law fence, were separated by a small creek, over which stock could easily pass; that this bill of indictment was drawn by the solicitor at the fall term, 1888, of the superior court of Montgomery, and sent before the grand jury at that term, and a subpoena issued for the defendant, marked on the back of it, the said term; but the grand jury did not call before them, and examine at said term, but two of the four witnesses, to-wit, W. S. Crawford and George Henderson, for the reason that the other two witnesses were not subpœnaed to said fall term, 1888. The grand jury thereupon, through its foreman, made this indorsement upon the bill: ' Continued. Witnesses marked " X " sworn and examined. Lee Crawford [meaning Morris] and John Crawford, not summoned. Continued for the want of evidence. A. E. Ew-ing, Foreman Grand Jury.' At the time the witness W. S. Crawford was examined before the grand jury, he being the prosecutor, he was informed by the grand jury that the bill could not be acted on till Lee Morris could appear. The bill thus continued by the grand jury was returned by them to the court, at the said fall term, 1888, of said court, 'Continued, 'as above stated; and the same was docketed along with...
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