State v. Parker
| Decision Date | 30 June 1879 |
| Citation | 81 N.C. 548 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. W. K. PARKER. |
OPINION TEXT STARTS HERE
INDICTMENT for a Misdemeanor under Bat. Rev., ch. 32, § 95, tried at Spring Term, 1879, of EDGECOMBE Superior Court, before Eure, J.
The bill charged that defendant with force and arms did unlawfully injure and abuse a certain hog the property of the prosecutor, said hog being at the time in a certain enclosure not surrounded by a lawful fence, contrary, &c. After a verdict of guilty, the defendant's counsel moved in arrest of judgment because the word “wilfully” or some other of similar import was omitted in the indictment. The motion was allowed, and Collins, solicitor for the state, appealed.
Attorney General, for the State .
Messrs. Howard & Nash, for the defendant .
This prosecution is founded on chapter 32, § 95 of Battle's Revisal for abusing a hog, the property of another, in an enclosure not surrounded by a lawful fence, and in the bill of indictment the charge is that the abuse was done unlawfully, omitting “wilfully.”
On conviction of the defendant, His Honor arrested the judgment on the ground that the word “wilfully” should have been used as necessary to a legally sufficient description of the statutory offence.
In the cases of State v. Staton, 66 N. C., 640; State v. Allen, 69 N. C., 23; State v. Painter, 70 N. C., 70, and State v. Hill, 79 N. C., 656, the indictment charged the offence, using both words, unlawfully and wilfully according to the precedents, and no objection was made to the sufficiency of the description in this respect. But in the case of the State v. Simpson, 73 N. C., 269, there was an omission of both, and the indictment was held defective.
In the enacting clause of the statute these words are not used, but the injury forbidden is forbidden in general words, so that any killing or abuse being unlawful simply would constitute an offence, although the thing done may have occurred, or been done by consent or from carelessness or accident; and hence it was that in the case of the State v. Simpson, supra, this court by construction held that it was necessary in bills of indictment under the statute in question to use both words to limit the general words of the statute.
We concur entirely in the correctness of the decision in Simpson's case, and the reasons on which it was based, and hold that the omission of the word ““wilfully” in the present case leaves the statute too little limited. The abuse charged on ...
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State v. Leeper
...department has been approved in strong and striking terms by Ruffin, C.J., in State v. Moses, 13 N.C. 464, and by Ashe, J., in State v. Parker, 81 N.C. 531, and in yet other by other judges from some of whom extracts are given with approval in State v. Barnes, 122 N.C. 1035, 29 S.E. 381, an......
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State v. Powell
... ... unlawfully." Common sense forbids the idea that it was ... the intention of the General Assembly to send to jail every ... person who by accident kills or injures stock in an inclosure ... not surrounded by a lawful fence. In State v ... Parker, 81 N.C. 548, it was held that an indictment ... under the same statute, charging the act to have been ... "unlawfully" done was defective and judgment was ... arrested because of the failure to charge that it was ... "willfully" done. These rulings do not conflict ... with those which hold ... ...
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State v. Howe
...without specifying the means of doing the act, it is sufficient to charge the act itself, without its attendant circumstances." States. Parker, 81 N. C. 548, and State v. Allison, 90 N. C. 733, follow the rulings in the case of State v. Simpson, and for the same reason, and it will be obser......
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