State v. Simons
| Decision Date | 31 January 1874 |
| Citation | 70 N.C. 336 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. ED. SIMONS. |
In an indictment for larceny, the ownership of the property stolen is charged, “100 lbs of cotton, the property of C, 100 lbs of cotton, the property of G:” Held, that the objection to the indictment on account of duplicity and obscurity, would have been fatal on a motion to quash, but that the defect is cured by verdict, as provided in chap. 35, secs 15 and 20, Rev. Code.
INDICTMENT, (for Larceny,) tried at the Fall Term, 1873, of RICHMOND Superior Court, to which it had been removed from Anson Superior Court, before his Honor, Judge Buxton.
The defendant was charged in the following indictment:
“The jurors for the State upon their oath present, that Ed. Simons, a person of color, late of the county of Anson, on the 1st day of January, 1873, with force and arms, at and in the county aforesaid, one hundred pounds of cotton, of the value of five dollars, of the goods and chattels of L. H. Covington, one hundred pounds of cotton of the value of five dollars of the goods and chattels of Daniel Gatewood, then and there being found, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”
The proof was that L. H. Covington carried several thousand pounds of his seed cotton to the gin-house of Daniel Gatewood to be ginned, and while the cotton was being ginned, several hundred pounds were stolen; and the evidence implicated the defendant in the larceny.
For the defendant, it was insisted that the indictment contained but a single count, in which the joint ownership of the cotton by Covington and Gatewood was alleged; and that in order to convict the defendant, such joint ownership must be proved, otherwise the defendant should be found not guilty; and his Honor was asked so to charge the jury. This, his Honor declined to do. Defendant excepted.
The jury were instructed by the Court, that in cases of bailment, where the property bailed was taken, the ownership may be alleged to be in the general owner, or in the bailee; that this indictment contained two counts, and that if either was supported by the evidence, it was sufficient. To this charge, defendant again excepted.
The jury found the defendant guilty. Rule for a new trial; rule discharged.
Defendant then moved to arrest the judgment, on the ground that the ownership of the property stolen, was defectively stated in the indictment. Motion overruled. Judgment and appeal by defendant.
Steele & Walker, for the defendant .
Attorney-General Hargrove, for the State .
“It is safest to follow the beaten path.” According to the established forms, this indictment would have contained two distinct counts, one charging the cotton to be the property of Covington, the other charging the cotton to be the property of Gatewood. This mode of allegation would fit the proofs, whether the cotton, upon the evidence, turned out to be the property either of Covington or of Gatewood.
It is evident, on the face of this indictment that it contains but one count. This departure from “the beaten path,” gives rise to the questions presented by the record.
1st. Supposing the bill of indictment to have only a single count, we do not concur in the conclusion of the counsel of the defendant that, ergo, the ownership of the cotton is charged as the joint property of Covington and Gatewood; on the contrary, the purpose is manifest to allege a several property in the cotton, so there is no variance between “ allegata and probata.”
2d. The proposition laid down by...
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State v. Calcutt
... ... However, an objection to a bill of indictment ... on the ground of duplicity must be seasonably made; and it is ... well settled that the defect is waived if the defendant fails ... to move to quash the indictment before pleading. State v ... Hart, 26 N.C. 246; State v. Simons, 70 N.C ... 336; State v. Hart, 116 N.C. 976, 20 S.E. 1014; ... State v. Burnett, 142 N.C. 577, 55 S.E. 72; ... State v. Beal, 199 N.C. 278, 154 S.E. 604 ... The ... defendant has waived the right to object to duplicity in the ... first count by failing to move to ... ...
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State v. Leeper
...B., and, as said by Pearson, C.J., the indictment will not be bad for duplicity, "if it was all one transaction. " (Italics his.) State v. Simons, 70 N.C. 336. On an indictment an assault with a deadly weapon, or with intent to kill, the defendant may be convicted of a simple assault, becau......
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State v. Burnett
...Wilson, 121 N. C. 655, 28 S. E. 416; State v. Hart, 116 N. C. 978, 20 S. E. 1014; State v. Cooper, supra; State v. Haney, supra; State v. Simons, 70 N. C. 336; State v. Locklear, 44 N. C. 205. The court charged the jury on the first count that they must be satisfied beyond a reasonable doub......
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State v. Froneberger, 8527SC1148
...several items at the same time and place. 50 Am.Jur.2d Larceny Sec. 3 at p. 154. See State v. Martin, 82 N.C. 672 (1880); State v. Simons, 70 N.C. 336 (1874); Annot., 136 A.L.R. 948. In such instances the constitutional guarantee against double jeopardy prohibits multiple convictions. See S......