State v. Smith

• Decision Date: 31 January 1869
• Citation: 63 N.C. 234
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JOHN SMITH.

63 N.C. 234

THE STATE

v.JOHN SMITH.

Supreme Court of North Carolina.

January Term, 1869.

That an indictment concludes against the form of the Statute, instead of Statute, is no ground for an arrest of judgment.

( S. v. Moses 2 Dev. 452; S. v. Tribatt 10 Ire. 151; S. v. Sandy 3 Ire. 570 and S. v. Abernathy Bus. 428, cited and approved.)

INDICTMENT for retailing spirituous liquors, tried before Thomas, J., at Fall Term 1868 of the Superior Court of JONES.

The only question made before this Court was upon the refusal of his Honor below to arrest the judgment, although the indictment concluded against the form of the “Statue” instead of Statute.

No counsel for the appellant .

Attorney General, contra .

SETTLE, J.

The defendant moves to arrest the judgment, for that the indictment concludes against the form of the “statue,” when it should have been, statute. What is the effect of substituting the word “statue” for statute, in this connection?

Formerly, it was necessary to set out at length the statute, or statutes, if more than one, upon which an indictment was founded, in order that the party might be informed of the law, against which it was alleged that he had offended. This particularity being attended with much inconvenience, and rendering the proceedings very cumbersome, the conclusion “ contra formam statuti” or “ contra formam statutorum” if the indictment was founded upon more than one statute, was received as a sufficient compliance with the law, instead of the long recital. But as many prosecutions still failed, because of the conclusion, “ contra formam statuti,” when it should have been “““ statutorum, ” and vice versa, the Courts permitted the device of concluding % 7F‘ contra formam statut., and would construe the abbreviation to be statuti or statutorum, in order to fit the case.

It is interesting to trace the changes which have taken place from time to time, in regard to the substance, as well as to the form of indictments. When first introduced, the utmost particularity was required in alleging, according to the truth of the matter, all the facts and circumstances attending the offence. And as the proof had to sustain the allegations in every particular, it was very difficult to obtain conviction,--so much so indeed, that the Courts were compelled, by considerations of public interest, to relax, by construction, the stringency of the rule, which required strict proof of everything, which it was necessary to allege. They would hold, for instance, that an indictment charging that A came to his death, from the effects of a mortal wound, upon the right side of the head, was sustained by proof that the mortal wound was in and upon the left side of the body. It is somewhat remarkable, that while the Courts, by construction, dispensed with so much of the proof necessary to sustain an indictment, they at the same time strictly adhered to old precedents, in regard to the allegations of the bill. They would not hesitate to arrest judgment, for a failure to set out a fact, which if set out, they held, it was not necessary to prove according to the truth of the matter.

*2 It is evident that the Courts have looked with no favor upon technical objections; and the legislature has been moving in the same direction. The current is all one way, sweeping off, by degrees, “informalities and refinements,” until, indeed, a plain, intelligible and explicit statement of the charge against the defendant is all that is now required, in any criminal proceeding.

The Act of 1811, Rev. Code, ch. 35, sec. 14, has received the almost universal approbation of the bench and bar. It needs no higher endorsement than that of the late Chief Justice RUFFIN. He says, in State v. Moses, 2 Dev. 452, “this law was certainly designed to uphold the execution of public justice, by freeing the Courts from those fetters of form, technicality and refinement, which do not concern the substance of the charge, and the proof to support it.”

This act has received a very liberal construction, and its efficacy has reached and healed numerous defects in the substance, as well as in the form of indictment. It...