State v. Wynne

• Decision Date: 15 September 1909
• Parties: STATE v. WYNNE.
• Court: North Carolina Supreme Court

65 S.E. 459

151 N.C. 644

STATE v. WYNNE.

Supreme Court of North Carolina

September 15, 1909

Appeal from Superior Court, Washington County; Peebles, Judge.

Enoch Wynne was indicted for unlawfully selling liquors, and, from an order granting a motion to quash the indictment, the State appealed. Reversed.

Attorney General, for the State.

CLARK C.J.

The indictment is as follows: "The jurors for the state upon their oaths, present: That Enoch Wynne, late of the county of Washington, on the -- day of February, in the year of our Lord, one thousand nine hundred and nine, with force and arms, at and in the county aforesaid, unlawfully and willfully did sell spirituous liquors by the small measure to Alex Weaver and Alonzo Wynne, said sale having been made in manner as follows, to wit, said Enoch Wynne ordered, at request of said Alonzo Wynne and Alex Weaver, from Norfolk Va., in a single shipment, in two separate bottles of whisky for each of them, not separately marked and designated, and not capable of identification as to the several owners, and delivered one of said bottles to each of them in Washington county, against the form of the statute in such case made and provided, and against the peace and dignity of the state." It was error to grant the motion to quash. The bill charges an "unlawful sale of liquor by the small measure." It is unnecessary to pass upon the effect of the evidential matters charged. The bill is complete without them. "Utile per inutile non vitiatur." A verdict of guilty or not guilty is only as to the offense charged not of surplus or evidential matters alleged. Revisal 1905, § 3254, forbids a bill to be quashed "if sufficient matters appear therein to enable the court to proceed to judgment." The use of superfluous words will be disregarded. State v. Guest, 100 N.C. 411, 6 S.E 253; State v. Arnold, 107 N.C. 861, 11 S.E. 990; State v. Darden, 117 N.C. 697, 23 S.E. 106; State v. Piner, 141 N.C. 760, 53 S.E. 305. In the old indictments for murder, the depth, width, and nature of wound, date of death, and divers other matters were charged including the "instigation of the devil," but were not required to be proven. The charge of an unlawful sale of liquor is plainly made. If that is proved, the defendant is guilty. If it is not proved, he is not guilty. The additional facts charged are surplusage, and ought not to have been charged. Their effect, if proven, is evidential only,...