State v. Shade

• Decision Date: 11 December 1894
• Citation: 20 S.E. 537,115 N.C. 757
• Court: North Carolina Supreme Court
• Parties: STATE. v. SHADE.

20 S.E. 537

115 N.C. 757

STATE.

v.SHADE.

Supreme Court of North Carolina.

Dec. 11, 1894.

Assault in Secret Manner—What Constitutes —Indictment.

1. Under Laws 1887, c. 32, making "an assault committed in a secret manner, by waylaying or otherwise " an offense, an indictment omitting the words "by waylaying or otherwise, " in charging that offense, is sufficient.

2. Where an indictment otherwise unobjectionable is not sufficiently specific as to the nature of the charge, and the defendant fails to demand a bill of particulars before trial, after conviction the court will not arrest the judgment for such objection.

3. Laws 1887, c. 32, making "an assault committed in a secret manner, by waylaying or otherwise, " an offense, includes, in addition to those accompanied by waylaying, every other assault committed in a secret manner.

Appeal from superior court, Burke county; Allen, Judge.

Rachel Shade was convicted of committing a secret assault with intent to kill, and appeals. Affirmed.

Criminal action tried at September term, 1894, of Burke superior court; before Allen, J. The indictment is, in substance, as follows: "The jurors, " etc., "present that Rachel Shade, " etc., "unlawfully, willfully, maliciously, feloniously, and in a secret manner, and with a certain deadly weapon, to wit, a pistol, in and upon the body of one Rose Wright did make and assault, with the intent then and there to kill the said Rose Wright, her the said Rose Wright did beat, bruise, and seriously injure, against the form of the statute, " etc The case states that the defendant was charged with committing a secret assault, under chapter 32, Laws 1887, with a pistol, upon Rose Wright; and evidence was offered by the state, tending to prove the charge as alleged, and evidence in rebuttal was offered by defendant.

S. J. Ervin, for appellant.

The Attorney General and J. T. Perkins, for the State.

AVERY, J. The defendant's counsel moves in arrest of judgment on the ground that the indictment does not charge that the assault was committed by waylaying, and does not specify the secret manner in which it was committed. The gravamen of the of fense created by the statute (Laws 1887, c. 32) is that the assault must be committed "in a secret manner with intent to kill" the person assailed. The language, which the defendant claims was not so followed in the Indictment as to put her on notice of the precise nature of the offense with which she was charged, was "by waylaying or otherwise." We think that the charge is sufficiently "plain, intelligible and explicit" (Code, § 1183) to enable the defendant to prepare her defense, and to warrant the court in proceeding to judgment in case of conviction. State v. Haddock, 109 N. C. 873, 13 S. E. 714. The trend of judicial decision, and the tendency of legislation, is towards the practical view, that objections founded upon mere matter of form should not be considered by the courts unless there is reason to believe that a defendant has been misled by the form of the charge, or was not apprised by its terms of the nature of the offense which he was held to answer. Where the defendant thinks that an indictment otherwise unobjectionable in form fails to impart information sufficiently specific as to the nature of the charge, he may, before trial, move the court to order that a bill of particulars be filed; and the court will...