State v. Sellers, 254
Decision Date | 08 May 1968 |
Docket Number | No. 254,254 |
Citation | 161 S.E.2d 15,273 N.C. 641 |
Parties | STATE of North Carolina v. Jack SELLERS. |
Court | North Carolina Supreme Court |
Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Bernard A. Harrell, for the State.
Charles V. Bell, Charlotte, for defendant appellant.
Defendant did not make a motion in the trial court for arrest of judgment on the ground the indictment was defective. For the first time in this Court he moved 'for arrest of judgment on the ground that the identity of the building alleged to have been broken and entered into by the defendant is not alleged with reasonable particularity to enable the defendant to plead his plea of 'nolo contendere' as a bar to further prosecution for the same offense.' A motion in arrest of judgment predicated upon some fatal error or defect appearing on the face of the record proper may be made at any time in any court having jurisdiction of the matter. This is true even though the motion is made for the first time in the Supreme Court at the hearing of the appeal from the judgment of the Superior Court. State v. Johnson, 226 N.C. 266, 37 S.E.2d 678; State v. Bradley, 210 N.C. 290, 186 S.E. 240; State v. Baxter, 208 N.C. 90, 179 S.E. 450; State v. McKnight, 196 N.C. 259, 145 S.E. 281; State v. Marsh, 132 N.C. 1000, 43 S.E. 828.
The indictment is based upon the following language of G.S. § 14--54:
The indictment in the instant case charges a felonious breaking and entry into 'a certain storehouse, shop, warehouse, dwelling house and building occupied by one Leesona Corporation, a corporation * * *.'
This is said in 42 C.J.S. Indictments and Informations § 166:
See also State v. Davis, 203 N.C. 47, 164 S.E. 732, cert. den. 287 U.S. 645, 53 S.Ct. 91, 77 L.Ed. 558; 27 Am.Jur. Indictments and Informations § 104.
This is said in State v. Williams, 210 N.C. 159, 185 S.E. 661:
"As a general rule, it is sufficient in framing an indictment upon a statute, to use the very words of the statute, but this rule is not without exception, for where a statute, in enumerating offenses, charging intent, etc., uses the disjunctive Or, it is common to insert the conjunctive And in its stead, in the bill of indictment, for alternative or disjunctive allegations make the bill bad for uncertainty. * * * It is common to insert several counts in order to meet the different views which may be presented by the evidence, but alternative allegations in the same count make it bad for uncertainty.' State v. Harper, 64 N.C. 129.'
State v. Knight, 261 N.C. 17, 134 S.E.2d 101, was a criminal prosecution on a three-count indictment charging the defendants with (1) non-burglariously breaking and entry, (2) larceny of a metal safe, of $75,000 in U.S. currency, and of stock and securities of the value of $100,000, and (3) receiving. The defendants pleaded not guilty. From a verdict of guilty and a sentence of imprisonment, they appealed to the Supreme Court. Defendants assigned as error the denial of their motion to quash the indictment, made in apt time before pleading to the indictment. They contended that the indictment should be quashed for this reason, Inter alia, that the first count charges them with a non-burglariously breaking and entry into 'a certain storehouse, shop, warehouse, dwelling house and building occupied by one Dr. D. W. McAnally,' etc., which does not give them any specific information as to the type of structure they are charged with breaking into. The Court held that this assignment of error was without merit. In its language the Court said:
The exact point presented on this appeal was presented in State v. Burgess, 1 N.C.App. 142, 160 S.E.2d 105, in an opinion filed 27 March 1968. In that case the defendant was charged in a bill of indictment with the felony of breaking and entering a certain storehouse, shop, warehouse, dwellinghouse, bankinghouse, countinghouse and building occupied by one Dreame A. Glover wherein merchandise, Et cetera, were being kept, and in a second count with the felony of larceny. Defendant, through his counsel, tendered a plea of guilty to the felonies of housebreaking and larceny as set forth in the bill of indictment. From a sentence of imprisonment, defendant appealed. In its opinion the Court said:
'In an addendum to his brief, defendant contends that the indictment is fatally defective for that it does not properly identify the premises, and he makes a motion in arrest of judgment. The first count in the indictment charges that the defendant did feloniously break and enter 'a certain storehouse, shop, warehouse, dwelling house, bankinghouse, countinghouse and building occupied by one Dreame A. Glover * * *.'
(Emphasis ours.)
We approve of the language of the Court of Appeals emphasized in the above quotation in respect to the particular identification of the building alleged to have been broken into and entered.
The facts in Wright v. Commonwealth, 155 Ky. 750, 160 S.W. 476, are not on all-fours, but are apposite. At the November term, 1912, an indictment was returned by the grand jury of Graves County, Kentucky, accusing B. W. Wright, L. A. Perkins, and Wood Gordon of the crime of banding themselves together for the felonious purpose of burning a warehouse and tobacco house, in pursuance of which conspiracy they did set fire to and burn and destroy a 'warehouse and tobacco house,' which was the property of G. R. Allen and W. A. Usher, and which was in the possession of B. W. Wright, who was doing business for himself and V. E. Allen, and upon which warehouse and tobacco house there was at the time insurance. The Court in its opinion said:
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State v. Simmons, 44
...is a sound rule of criminal pleading designed to inform the defendant of the crime for which he stands charged. State v. Sellers, 273 N.C. 641, 161 S.E.2d 15; 42 C.J.S. Indictments and Informations § 166; 41 Am.Jur.2d Indictments and Informations § 96. However, where, as here, the felonies ......
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...is a sound rule of criminal pleading designed to inform the defendant of the crime for which he stands charged. State v. Sellers, 273 N.C. 641, 161 S.E.2d 15; 42 C.J.S. Indictments and Informations § 166; 41 Am.Jur.2d Indictments and Informations § 96. However, where, as here, the felonies ......