State v. Sloan

• Decision Date: 30 June 1872
• Citation: 67 N.C. 357
• Parties: STATE v. WILLIAM SLOAN.
• Court: North Carolina Supreme Court

67 N.C. 357

STATE

v.WILLIAM SLOAN.

Supreme Court of North Carolina.

June Term, 1872.

If an indictment be clearly defective, the Court upon motion will quash, whether the charge be for a felony or a less offence.

An indictment need not be certain “to a certain intent in every particular;” but it is indisputable, that when a statute enacts, that any of a class of persons who shall do or omit to do an act under certain circumstances shall be guilty of a crime, the indictment under that statute must describe the person indicted as one of that class, and aver that he did or omitted to do the act charged, under circumstances which make it a crime;

Therefore, where an indictment framed under chapter 38, Acts of 1869-'70, failed to aver that the accused was the President of a Railroad Company, in which the State had an interest, and also tailed to aver that he had received the State bonds under some act of the Legislature or ordinance of the Convention, passed since May, A. D. 1865; it was held, that such an indictment was fatally defective, and should be quashed.

Motion to quash, heard before Watts, J., at Fall Term, 1871, of WAKE Superior Court.

This was an indictment against the defendant founded upon a supposed violation of the 38th chapter of the acts of 1869-'70. Such parts and sections of the act as are material to the case are set out in the opinion of the Judge. The charges in the indictment are also stated in an abbreviated form in the opinion. There was a motion to quash. The motion was sustained and the indictment quashed. The State appealed to the Supreme Court.

Attorney General and Battle & Son, for the State .

Fowle and Bailey, for the defendant .

RODMAN, J.

We think there is no difficulty as to the rule, which Courts will in general observe, as to quashing indictments. If one be clearly defective, and would not support a conviction, the Court will quash it whether it be for a felony or for a less offence. Because in such a case it is useless to the State, and oppressive to the accused, to proceed to a trial which can amount to nothing. As by quashing, the recognizance of the prisoner is discharged, the Court, if the offence charged be a heinous one, and especially if there be danger that the prisoner will flee from justice, may in its discretion delay its decision for a reasonable time, to give the grand jury an opportunity to find a new bill. And whether the charge be of a felony or of a misdemeanor, if the motion shall require the decision of a difficult and important question of law, inasmuch as a refusal to quash does not amount to a final decision, and the question of law will still remain open on a motion in arrest of judgment, the Court will refuse to decide the question upon a state of facts which is only hypothetical; as the accused may be acquitted, and so a decision become unnecessary. This is in conformity with the general practice of Courts, not to decide such a question until it shall be necessary to do so. This is about all that is meant, when it is said the Court has a discretion to quash.

The only question, therefore, is, does the present indictment so clearly fail to charge an offence that, no matter what may be proved, all proceedings under it must end in the discharge of the accused.

The indictment is founded on a supposed violation of chap. 38 of the Acts of 1869-'70, p. 78.

That act enacts, Sec. 1, “It shall be the duty of the several Presidents or other officers of rail roads who have secured bonds or other securities of the State for the construction of any road in which the State is interested, under an act of the General Assembly, or ordinance of a Convention passed since May, year of our Lord, 1865,” to file before the Governor and Superintendant of Public Works a certain statement.

It will be noticed that the word “secured,” in this section, is senseless in the connection in which it is found. It may not unfairly or improperly for the present purpose, be supposed that the true word is “received.” But if any thing turned upon it finally, it would be necessary to consult the original act as enrolled in the Secretary's office before accepting the substituted word.

Sec. 3, to some extent, changes the phraseology of Sec. 1. It enacts, “It shall be further the duty of every President or other officer of a rail road, as provided in section first of this act, and every such President or other officer is hereby required, to return to the public Treasurer subject to the joint order of the Governor and Superintendant of Public Works, as hereinafter prescribed, all bonds of the State which have been issued under any authority of law and which remain in the hands of any such President or other officer unsold or undisposed of,” &c.

Section 4 requires the Governor to have notice served on every such President, &c.

Section 5 prescribes, that the time within which such President, &c., shall comply with the provisions of the first three sections of the act, shall be twenty days from the personal service above provided for.

Section 9 is in these words, “If the President or other officer of any rail road company, in which the State is interested within the purview of the first five sections of this act, shall wilfully refuse or fail to comply with the said provisions thereof, every such President or other officer shall be deemed guilty of felony, and...