State v. Oliver

• Decision Date: 24 October 1923
• Docket Number: 274.
• Citation: 119 S.E. 370,186 N.C. 329
• Parties: STATE v. OLIVER.
• Court: North Carolina Supreme Court

119 S.E. 370

186 N.C. 329

STATE v. OLIVER.

No. 274.

Supreme Court of North Carolina

October 24, 1923

Appeal from Superior Court, New Hanover County; Cranmer, Judge.

R. P Oliver was indicted for false pretense made in the procurement of certain sacks of fertilizer. From a judgment overruling his plea in abatement, he appeals. Affirmed, and remanded for further proceedings.

A plea in abatement must be filed in apt time, usually not later than the arraignment.

The defendant was indicted for false pretense, in that he represented to the Morris Fertilizer Company that he was the owner of the farm on which he lived in Sampson county, and that it was free from incumbrances, whereas the farm was owned by another and was incumbered to the amount of $9,000 and that by means thereof he obtained certain sacks of fertilizer from the company to its loss. The order of the court recites the defendant's execution in New Hanover county of a contract to handle fertilizers in 1920 as the company's agent, that this contract was lost, and that the company mailed to the defendant another contract, which he signed in Sampson county on February 9, 1920, and then mailed to the company at Wilmington.

The indictment was found at the June term, 1923, of the superior court of New Hanover, and thereafter at the same term the defendant moved to continue the case. His motion was allowed and the case was set for trial on a certain day of the July term. On the day set for trial the defendant, without giving previous notice, filed a plea in abatement on the ground of improper venue, contending that under the contract the fertilizer was received in Sampson, and the crime, if any, was committed there.

The plea was overruled, and the defendant excepted and appealed.

Nathan Cole, of Wilmington, and Leon G. Stevens, of Smithfield, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

At common law crimes of a local character could be prosecuted only in the jurisdiction in which they were committed, and the venue was laid in such county or district. It was ordinarily the duty of the prosecution to show that the offense was committed in the county in which the indictment was returned; otherwise the defendant was entitled to an acquittal. 1 Archbald's Cr. Pr. & Pld. § 211; State v. Carter, 126 N.C. 1011, 35 S.E. 591. But this rule has been changed by statute, and it is now provided that in the prosecution of all offenses it shall be deemed and taken as true that the offense was committed in the county in which, by the indictment, it is alleged to have taken place, unless the defendant shall deny the same by plea in abatement. C. S., § 4606; State v. Woodard, 123 N.C. 710, 31 S.E. 219; State v. Holder, 133 N.C. 710, 45 S.E. 862.

The plea was filed by the defendant, and the question is whether, under the circumstances disclosed by the record, it is available in his behalf. The court has frequently held that a plea in abatement must be filed in apt time, usually not later than the arraignment. State v. Seaborn, 15 N.C. 311; State v. Haywood, 73 N.C. 437; State v. Griffice, 74 N.C. 317; State v. Baldwin, 80 N.C. 390; State v. Watson, 86 N.C. 624; State v. Holder, 133 N.C. 710, 45 S.E. 862.

It does not appear whether, when the defendant made his motion in open court, he was formally arraigned, or whether a plea of not guilty was then entered of record; but in our view of the law the question presented for decision is not necessarily dependent on the time of arraignment.

To sustain the indictment it was essential that the court have jurisdiction both of the subject-matter and of the person of the defendant. Jurisdiction of the offense could neither be waived nor conferred by consent; but, as to the court's jurisdiction of the crime, no question is raised. With respect to the defendant's person this rule is less rigid, for irregularities in obtaining jurisdiction of his person may be waived by the defendant. 16 C.J. 174, § 225; Id. 176, § 231; Id. 412, § 747; 8 R. C. L. §§ 23, 55.

A plea in abatement is a dilatory plea; if it is sustained the trial may be delayed, but the defendant is usually retained in custody to await the return of another indictment. Clark's Cr. Pro. 377; State v. Griffice, supra. This is propably a...