State v. Orrell

• Decision Date: 31 December 1826
• Citation: 12 N.C. 138
• Court: North Carolina Supreme Court
• Parties: THE STATE v. CURTIS ORRELL.

12 N.C. 138

THE STATE

v.CURTIS ORRELL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1826

From New Hanover.

When the death does not ensue within a year and a day after a wound is inflicted, the law presumes that it proceeded from some other cause. Hence, an indictment upon which it does not appear that the death happened within a year and a day after the wound was given, is fatally defective.

THE prisoner was tried upon the following indictment: "The jurors for the State upon their oaths present, that Curtis Orrell, late of the county of New Hanover, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the seventeenth day of May, in the year of our Lord one thousand eight hundred and twenty-six, with force and arms, in the county of New Hanover, in and upon one Penelope Orrell, in the peace of God and the State then and there being, feloniously, willfully, and of his malice aforethought, did make an assault; and that the said Curtis Orrell, a certain gun, of the value of five shillings, then and there loaded and charged with gunpowder and leaden shot, which gun he the said Curtis Orrell in his hands then and there had and held, to, against, and upon the said Penelope Orrell, then and there feloniously, willfully, and of his malice aforethought, did shoot and discharge, and that the said Curtis Orrell, with the leaden shot aforesaid, out of the gun aforesaid, then and there by the force of the gunpowder, shot and sent forth as aforesaid, the said Penelope Orrell, in and upon the left side of her the said Penelope Orrell, a little above the left

hip of her the said Penelope Orrell, then and there feloniously, willfully, and of his malice aforethought, did strike, penetrate, and wound, giving to the said Penelope Orrell, then and there, with the leaden shot aforesaid, so as aforesaid shot, discharged, and sent forth out of the gun aforesaid, by the said Curtis Orrell in and upon the left side of her the said Penelope Orrell, a little above the left hip of her the said Penelope Orrell, one mortal wound, of the depth of six inches, of which said mortal wound the said Penelope Orrell died. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said Curtis Orrell the said Penelope Orrell, in manner and form aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder, etc."

After a verdict for the State the prisoner's counsel moved in arrest of judgment:

1. Because it was not averred in the indictment thatthe death happened within a year and a day after the mortal wound was given.

2. Because it did not appear upon the indictment that the deceased died in the county of New Hanover.

For these reasons the judgment was arrested by his Honor, Judge Norwood; whereupon the solicitor...