State v. Smith
| Decision Date | 03 March 1890 |
| Citation | 11 S.E. 166,106 N.C. 653 |
| Parties | STATE v. SMITH |
| Court | North Carolina Supreme Court |
Appeal from superior court, Harnett county; J. F. GRAVES, Judge.
The Attorney General, for the State.
F. P Jones, for defendant.
The indictment charges that the defendant, in the county, etc on the 1st day, etc., "did, by a certain agreement, rent from one H. C. Avera certain land there situate for agricultural purposes, and during the term of his said renting did raise certain crops on said land; and that the said J. D. Smith afterwards, to-wit, on the 27th day of November, A. D. 1888, in said county, unlawfully and willfully did remove from said land a part of the crops of cotton and fifty bushes of corn, without the consent of said H. C. Avera or his assigns, and without giving him, the said H. C. Avera, or his agent, five days' notice of such intended removal, and without satisfying all liens held by the said H. C. Avera or his assigns on said crops contrary," etc. The defendant appeared, and moved to quash the indictment, because it "does not set forth that the said H. C. Avera or his assigns held liens on the said crops at the time of said removal." The court sustained the motion to quash, and gave judgment accordingly. The solicitor for the state, having excepted, appealed to this court.
The statute (Code, § 1754) provides that etc. In the absence of agreement to the contrary, the purpose and effect of the above recited provision is to vest the crops raised on the leased land in possession of the lessor or landlord, and give him a lien on the same until the rents and advancements, etc., shall be paid as prescribed. It is hence not necessary, in an indictment for removing the crop, or any part of it, from the leased land, in violation of the statute, (Code, § 1759,) in charging that a lease was made, to charge specially, in that connection, that the lessor or landlord had a lien upon the crop. This is so, because, the lease being charged, the law--the statute--implies the lien arising by virtue of the lease,--the relation charged. It is not necessary to charge matter of law and what it necessarily implies, because the court must see and take notice of what the law is, and its application to the material facts charged in the indictment. When the lease is charged, the lien is charged by legal implication, nothing to the contrary appearing. So, in the present case, the indictment in charging the lease--the facts constituting the relation of landlord and tenant--charges, in legal effect, a lien upon the crop in favor of the former, that the latter is bound to discharge, or deal with in some way as allowed and required by the statute applicable. This court has repeatedly upheld indictments for removing crops from leased lands on which they were produced, in which the lien was not specifically charged in the connection above mentioned. State v. Pender, 83 N.C. 651; State v. Walker, 87 N.C. 541; State v. Powell, 94 N.C. 920.
What we have thus said is not at all inconsistent with what is said and decided in State v. Merritt, 89 N.C. 506, and State v. Rose, 90 N.C. 712. Those cases have reference to the material charge in the indictment which negatives the discharge of "all liens held by the lessor or his assigns" on the crop. The requisites of the indictment, as a whole, in each of them, were not before the court to be considered, nor did it advert to the general form of it in either case. The assignment of error only extended and the attention of the court was confined to the part of each mentioned above. The court said, properly, that it must be charged that the removal of the crop necessary to make up an essential element of the offense was "before satisfying all the liens held by the lessor or his assigns on said crops," --not "without satisfying all liens on said crop." When the court said in State v. Rose, supra, "the indictment does not aver [charge] that the 'lessor or his assigns' had liens on the crop," it meant to say, in the connection in which the words were used, that it was not charged that "lessor or his assigns" had liens on the crop undischarged; it meant that, and no more. Having in view the question under consideration, and taking all that was said in discussing it together, such meaning certainly appears.
What is said in the last paragraph of the opinion in the case last referred to is merely, suggestive of a complete form of an indictment in such cases, and it would be well if the suggestions were observed; but the court did not say that an indictment less complete could not be upheld, if it charged the essential requirements of the offense. In the case before us the indictment is not so definite and precise in some respects as it might, perhaps ought to, be, but in the respect complained of it sufficiently charges, in connection with what the law implies, that the defendant removed the crop--a part of it--"before satisfying all the liens held by the lessor or his assigns on said crops;" and, taking the indictment as a whole, we think it sufficient. There is error. The order quashing the indictment must be set aside, and further proceedings had in the action according to law. To that end let this opinion be certified to the superior court. It is so ordered.
Every essential fact constituting the offense must be set forth in the indictment with plainness and reasonable certainty, and by direct averment, and not inferentially or by implication. Statutes creating offenses must be construed strictly, and nothing essential can be omitted; as, for instance, an indictment under the statute for stealing figs, which omits to charge that they were "cultivated for food or...
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