State v. Phelps
| Decision Date | 30 June 1871 |
| Citation | 65 N.C. 450 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. ANDERSON PHELPS. |
A count in an indictment must be complete in itself, and contain all the material allegations which constitute the offence charged. Therefore, a count charging defendant with receiving stolen goods, is defective, which does not contain the name of the defendant in the proper place, and distinctly charge him with receiving the stolen goods.
This defect is not cured by the statute, Rev. Code, chap. 35, sec. 14, and judgment will be arrested.
Indictment for receiving stolen goods tried before Cloud, J., at Spring Term, 1871, of Rowan Superior Court.
The indictment contained two counts, one for larceny, the other for receiving stolen goods. The jury acquitted defendant on the first count, and convicted on the latter, a copy of which is as follows:
“And the jurors aforesaid, upon their oath aforesaid, do further present that on the day and year aforesaid, in the County aforesaid, one box manufactured tobacco, two bottles of whiskey, and five gallons of whiskey, of the value of twenty dollars, of the goods, and chattels of William B. March before then feloniously stolen, taken and carried away feloniously did receive and have, he the said Anderson Phelps, Green Phelps, and David Phelps, then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away, against the form of the statute in such case made, and provided, and against the peace, and dignity of the State.”
Motion in arrest of judgment, motion refused. Judgment and appeal.
Attorney General, for the State .
Bailey, for defendant .
As to the motion in arrest:
There being an acquittal in the count for larceny, the coun?? for receiving is alone under consideration, and with regard to that I submit that it is the play of Hamlet with the Prince of Denmark left out. The name of the defendant being omitted from the first part, the count charges a receiving, but it cannot be seen by whom: the latter part in which the prisoner's name occurs, only charges him with a knowledge that certain goods had been theretofore stolen, which has not as yet, been made an indictable offence.
Indictments should be certain to every intent and without any intendment to the contrary, 1 Ch. Cr. Law, 171.
And by reference to Arch. Cr. Pl'd. I find a form of an indictment of larceny and receiving, the jonder of which had been authorized by statute 11 and 12 Vict. Vol. 3 top ...
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State v. Hammonds
...convicted in the court below does not contain her name, and is, therefore, fatally defective. In support of her position she cites State v. Phelps, 65 N.C. 450; State v. McCollum, 181 N.C. 584, 107 S.E. 309; and State v. Camel, 230 N.C. 426, 53 S.E.2d There appears to be some conflict in th......
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State v. Williams, 70A81
...S.E.2d 133 (1954); State v. Finch, 218 N.C. 511, 11 S.E.2d 547 (1940); State v. McCollum, 181 N.C. 584, 107 S.E. 309 (1921); State v. Phelps, 65 N.C. 450 (1871). This failure has no effect on the murder conviction, however, because when the State prosecutes a defendant for first-degree murd......
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State v. Johnson
...warrant the acts and circumstances of the particular charge, so that the court can see as a matter of law that a crime is charged, State v. Phelps, 65 N.C. 450, State Finch, 218 N.C. 511, 11 S.E.2d 547, and the defendant be apprised of the particular offense charged against him, a right gua......
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State v. Russell, 48
...not repeated in charging the Scienter. State v. McCollum, 181 N.C. 584, 107 S.E. 309; State v. May, 132 N.C. 1020, 43 S.E. 819; State v. Phelps, 65 N.C. 450. This is a refinement which the act of 1811, now C.S. 4623 (now G.S. 15--153), sought to remedy. State v. Parker, 81 N.C. 531. It prov......