State v. Owen

• Decision Date: 31 July 1810
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN OWEN.

5 N.C. 452

STATE

v.JOHN OWEN.

SUPREME COURT OF NORTH CAROLINA

JULY TERM, 1810.

From Wake.

1. In an indictment for murder, where the death is occasioned by a wound, bruise, or oilier assault, the stroke must be expressly laid. But an indictment, charging "that A. B.. with a certain stick, etc., in and upon the head and face of C. D., then and there feloniously, etc., did strike and beat, giving to the said C. D. then and there with the stick aforesaid, in and upon the head and face of the said C. D., several mortal wounds, of which said several mortal wounds the said C. D. instantly died," is good; for there is in the first clause a direct allegation of a stroke, and the participle giving and the words then and there connect this allegation with the mortal wounds in the second clause.

2. In an indictment charging "that A, feloniously and of his malice aforethought, assaulted B. and with a sword, etc., then and there struck him, etc.," the first allegation, of feloniously and of his malice aforethought, applied to the assault, runs also to the stroke to which it is essential.

3. Where in an indictment for murder the death is charged to be occasioned, by a wound, a description of the wound must be set forth in the indictment—its length, breadth, depth, etc., where they are capable of description; and the omission of such description is fatal to the indictment.

4. Where the death is charged to be occasioned by a bruise, a description of its dimensions, etc., is not necessary.

THE defendant being found guilty of the offense charged in the following bill of indictment, it was submitted to this Court whether sentence of death could be pronounced against him on the said bill.

STATE OF NORTH CAROLINA,

WAKE COUNTY.

Superior Court of Law, October Term, 1809.

The jurors for the State upon their oaths present, that John Owen, late of the county and State aforesaid, cabinet-maker, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, on the night of 21 April, 1809, with force and arms, at the city of Raleigh, in the county of Wake aforesaid, in and upon one Patrick Conway, in the peace of God and the State then and there being, feloniously, willfully, and of his malice aforethought did made an assault; and that he, the said John Owen, with a certain stick, of no value, which he, the said John Owen, in both his hands then and there had and held, the said Patrick Conway, in andupon the head and face of him, the said Patrick Conway, then and there feloniously, willfully, and of his malice aforethought, did strike and beat, giving to the said Patrick Conway, then and there, with the pine stick aforesaid, in and upon the head and face of him, the said Patrick Conway, several mortal wounds, of which said several mortal wounds the said Patrick Conway then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say that the said John Owen the said Patrick Conway, in manner and form aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the State.

The judges were unanimous in opinion that the firstexception taken to the indictment could notbe supported.

TAYLOR, J., delivered the opinion of the Court. In endeavoring to form a correct opinion on the points argued in this case, it is the design not less than the duty of the Court to conform to the principles of law as they are laid down in works of authority. We disclaim all right of giving to them a rigorous construction to aid the prisoner's acquittal or of relaxing their true meaning to effect his condemnation. Like every other citizen in his situation, he is entitled to the full benefit of the constitutional provisions devised to promote the security of all; and though the most atrocious criminality may have been proved to the satisfaction of the jury, yet legalcondemnation ought never to be separated from legal proofs. And we cannot too strongly impress it on our minds that want of the requisite precision and certainty which may, at one time, postpone or ward off the punishment of guilt, may, at another, present itself as the last hope and only asylum of persecuted innocence. It must, however, be confessed that there is, in the ancient reasoning on this branch of the law, a degree of metaphysical and frivolous subtilty strongly characteristic of the age in which it was introduced, when at the revival of letters the first efforts of learning were laborious and rude, and scarcely a ray of common sense penetrated the clouds of pedantry. Were a system now to be established, it is probable that much of the jargon of the law would be exploded, and that no objection would prevail against an indictment, or any other instrument, which conveyed to the mind, in an intelligible form, its intended impression. But we must follow in the footsteps of those who have preceded us until the Legislature think fit to interfere; though we have no wish to extend the particularity further. On this subject the sentiments of an eminent judge have been properly read by the counsel for the State; since, although he was conspicuous for his tenderness to criminals, as well as for every manly and Christian virtue, yet he condemned this nicety as a reproach to the laws. We would also refer to the opinion of another illustrious man delivered a century afterwards, a man who had devoted a long life to the cultivation of the science he so ably dispensed.

The first exception taken to this indictment is that in that part of it which states the mortal wound the stroke is only laid by implication.

The rule laid down by the writers is that where the death is occasioned by a wound, bruise or other assault, the stroke should

be expressly laid. In every case, however, where the objection has been heretofore taken, there is an omission of the express charge of the stroke in that part of the indictment wherein it is charged in this. In Long's case, 5 Co., the worddischarged" is used. There seems to be'no case where a repetition of the stroke is required after the participle giving, if it has been directly charged in the preceding clause. A critical examination of Long's case, supposing it to be of good authority, which is by no means certain, will show that instead of supporting, its tendency is to repel the exception in this case. The material words of the indictment, necessary to be taken into view, in Long's case, were "that the aforesaid H. D. a certain pistol, etc., loaded with powder and a leaden bullet, etc., in and upon the said H. Long discharged, giving to the said II. Long then and there with the leaden bullet aforesaid, so as aforesaid sent forth from the said pistol by the said H. D., one mortal wound, etc." The court in giving judgment, divided the objection into two parts: (1) the clause before the words "giving him"; (2) the clause containing these words; and they resolved that the first clause was not sufficient of itself; for although H. D. discharged the pistol upon him, it may be that he was not struck by it. Then the second clause cannot make it good, for the clause of "giving," etc., depends on the said first clause, and describes the wound only to show it to be mortal, which ought to appear by the first sentence to be given; because in that case the participle determines the verb. But here it did not appear...