Opinion
August Term, 1853.
1. Where a statute defines an offense, makes it indictable, and prescribes the punishment, an indictment for it is wholly founded on this statute, although it contains a reference to a former statute, giving a penalty to a common informer, for the same act.
2. Therefore, if the indictment concludes against the statutes, it is fatally defective, and judgment will be arrested after verdict.
(The case of S. v. Sandy, 25 N.C. 570, cited and approved.)
THE defendant was indicted and tried before his Honor, Caldwell, J., at CATAWBA, at Fall Term, 1852, for the offense of buying and receiving from a slave ten pounds of iron. The indictment concluded against the form of the statutes; and, after conviction, the defendant's counsel moved in arrest of judgment on account of this defect — insisting that there was but one statute subjecting the defendant to indictment. His Honor sustained the motion in arrest, and the solicitor for the State appealed.
Attorney-General for the State.
No counsel for defendant in this Court.
It is too well settled in this State to be questioned, that if an indictment conclude against the form of the statutes, when there is only one statute relating to the offense charged, it is a fatal defect, for which the judgment must be arrested. S. v. Sandy, 25 N.C. 570. The defect has been cured in England by the statute 7 Geo., 4, chapter 64, section 20; and it is a question for another department of the government, whether a similar provision ought not to be adopted here.
The appeal in this case was taken, we presume, upon the supposition that the offense charged was founded upon two statutes instead of one — to wit, the 34th chapter, section 75, of the Revised Statutes, and the act of 1848, chapter 36, section 1.
It is true that the latter statute refers to the former, but is not in any respect indebted to it for the offense which it defines and makes indictable. It is complete in itself, both in defining the misdemeanor and prescribing the punishment; and if the indictment were to set out the statute or statutes upon which it was founded, instead of (429) referring to it or them in general terms, it would clearly be unnecessary to set out any but the act of 1848. This is decisive of the manner in which the indictment ought to conclude.
It is hardly necessary to say that the reference in the latter part of the section of the act of 1848, to the 75th section of the 34th chapter of the Revised Statutes, as to the forfeiture or penalty which is given to a common informer, and the manner in which it is to be recovered, cannot at all affect the form of the indictment. It is obviously a separate and distinct matter, which has nothing to do with the indictable offense, and cannot, therefore, influence the mode of proceeding upon it. The motion in arrest of judgment was properly allowed, and must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: S. v. Smith, 63 N.C. 237.