State v. Simpson
| Decision Date | 30 June 1875 |
| Citation | 73 N.C. 269 |
| Parties | STATE v. NEWTON A. SIMPSON. |
| Court | North Carolina Supreme Court |
*1 An indictment under the act of 1868, Bat. Rev., chap. 32, sec. 95, for killing and abusing a cattle beast, the property of, &c. in an inclosure not surrounded by a lawful fence, is defective, for the reason that it does not charge the act to have been done “unlawfully and wilfully,” or words of equivalent meaning.
( State v. Stanton, 1 Ired. 424, cited and approved.)
INDICTMENT for abusing and killing stock in an enclosure not surrounded by a lawful fence, tried before Eure, J., at Spring Term, 1875, of the Superior Court of CHOWAN County.
The prisoner was arraigned and tried upon the following bill of indictment, to wit:
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¦“STATE OF NORTH CAROLINA,¦)¦Superior Court, ¦
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¦CHOWAN COUNTY. ¦)¦Fall Term, 1874. ¦
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The jurors for the State, upon their oath, present that N. A. Simpson, late of the county of Chowan, aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and seventy-four, with force and arms, at and in the county of Chowan aforesaid, one cattle beast, to wit, the property of John Roberts, of the value of ten dollars, did abuse and kill in the enclosure of the said N. A. Simpson, not surrounded by a lawful fence, against the form of the statute in such cases made and provided, and against the peace and dignity of the State.”
The jury returned a verdict of guilty, and thereupon the defendant moved in arrest of judgment on the ground that the indictment did not charge that the abusing and killing was “unlawful and wilfull,” as required by Sec. 95, Chap. 32, Bat. Rev.
The Court overruled the motion, and the prisoner appealed.
No counsel in this Court for the prisoner.Attorney-General Hargrove and Gilliam & Pruden, for the State .
The defendant was convicted under the Act of 1868. “If any person shall kill or abuse any horse, cow, hog, &c., the property of another, in any enclosure not surrounded by a lawful fence, such person shall be deemed guilty of a misdemeanor.” Bat. Rev., chap. 32, sec. 95.
It is apparent from the nature of things that these words are too broad and go beyond the meaning of the law makers. The statute by its necessary construction must be qualified by the addition of the words, “ wilfully and unlawfully” kill or abuse any horse, cow, &c. Common sense forbids the idea that it was the intention of the General Assembly to send to jail every person who by accident kills, &c., or injure the horse, cow, &c., of another in any enclosure not surrounded by a lawful fence; or every person who kills his neighbor's cow by his permission; for instance, suppose a man complains to his neighbor, “you have a mischievous cow that no fence can turn, for she will push down or jump any fence; your cow is doing me every night more damage than she is worth.” And his neighbor says, “I know she is mischievous and you have leave to kill her the next time she breaks into your field, provided you will pay for her, or butcher her, and bring me the meat and hide and tallow.” Such instances of good neighbor-ship are not of rare occurrence where but few keep lawful fences. Can any one suppose it was the intention of the General Assembly to make such acts indictable? Yet they come within the words of the statute, which shows the necessity of adding the words “unlawfully and wilfully” in order to take such cases out of the operation of the statute. That these or equivalent words were omitted by inadvertence on the part of the...
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...be used in indictments for violating statutes prohibiting, or making criminal the doing or omitting to do the acts described. In State v. Simpson, 73 N.C. 269, the indictment drawn under a statute declaring it a misdemeanor to kill or abuse live stock in any inclosure not surrounded by a la......