In our criminal procedure it is provided by statute, C. S., 4623, that every criminal indictment is sufficient in form if it express the charge against the defendant in a plain, intelligible and explicit manner, and that the indictment shall not be quashed nor the judgment thereon stayed by reason of any informality or refinement, if in the bill sufficient matter appears to enable the court to proceed to judgment. This section, too, has been discussed and applied in numerous decisions of this Court, among which are: S. v. Moses, 13 N.C. 452; S. v. Gallimore, 24 N.C. 372; S. v. Whedbee, supra; S. v. Francis, 157 N.C. 612, 72 S.E. 1041; S. v. Ratliff, 170 N.C. 707, 86 S.E. 997; S. v. Carpenter, 173 N.C. 767, 92 S.E. 373; S. v. Sauls, 190 N.C. 810, 130 S.E. 848; S. v. Ballangee, 191 N.C. 700, 132 S.E. 795; S. v. Lea, 203 N.C. 13, 164 S.E. 737; S. v. Whitley, 208 N.C. 661, 182 S.E. 338; S. v. Anderson, 208 N.C. 771, 182 S.E. 643; S. v. Dale, 218 N.C. 625, 12 S.E.2d 556. Furthermore, the decisions of this Court are uniform in holding in substance that in an indictment for a statutory crime all the facts and circumstances essential to brink the case within the statutory definition of the offense must be specifically set forth.
The gravamen of the charge against the defendant is, that he kept or had in his possession, for the purpose of sale, spirituous liquors in violation of C. S., 3379. S. v. Langley, 209 N.C. 178, 183 S.E. 526. The additional allegation, "and not bearing the stamp of the A. B. C. Board of Pitt County," was unnecessary and may be regarded as surplusage or as a refinement within the meaning of C. S., 4623. "A refinement is understood to be the verbiage which is frequently found in indictments in setting forth what is not essential to the constitution of the offense, and, therefore, not required to be proved on the trial" — Gaston, J., in S. v. Gallimore, 24 N.C. 372. The prosecution was under no obligation to offer evidence of a nonessential averment.
S. v. Haddock, 3 N.C. 162; S. v. Harbert, 185 N.C. 760, 118 S.E. 6. The fact that these same parties own other houses in like capacity, is not ground for demurrer or quashal. S. v. Sprouse, 150 N.C. 860, 64 S.E. 900; S. v. Daniel, 121 N.C. 574, 28 S.E. 255; S. v. McCarter, 98 N.C. 637, 4 S.E. 553. Sufficient matter appears on the face of the indictment to enable the court to proceed to judgment. C. S., 4623; S. v. Gallimore, 24 N.C. 372; S. v. Green, 151 N.C. 729, 66 S.E. 564. And the defendant could not be tried again for the same offense. S. v. Prince, 63 N.C. 529. His plea of former conviction would easily avail in case of a second prosecution.
The ground upon which the defendant assails the bill is fundamental; it is not an "informality or refinement" condemned by section 4623 of the Consolidated Statutes. By the many adjudications construing this section it has been definitely settled that the section neither supplies nor remedies the omission of any distinct averment of any fact or circumstance which is an essential constituent of the offense charged. S. v. Gallimore, 24 N.C. 372. In this case it was said: "The ground of these adjudications is that sufficient does not appear to the Court in the face of any indictment to induce them to proceed to judgment when, in the indictment, they do not see distinctly every fact and circumstance which makes up the crime.
Chief Justice Ruffin suggested that an informality can embrace, perhaps, only the mode of stating the fact, but if the fact be one which essentially enters into the offense it must be set forth ( S. v. Moses, 13 N.C. 452, 464); and Judge Gaston observed that a refinement is understood to be the verbiage which is frequently found in indictments setting forth what is not essential to the constitution of the offense, and, therefore, not required to be proved. S. v. Gallimore, 24 N.C. 372. But in each of these cases it was said in substance that the statute does not supply the omission of a distinct averment of any fact or circumstance which is an essential constituent of the offense charged.
The statute 23 Geo. II. was reenacted in the same words in this State in 1791, ch. 7; but it was repealed in 1837, Rev. Stat., ch. 1, sec. 2. That caused the decision in S. v. Gallimore, 24 N.C. 372; but at the succeeding Assembly the inconveniences arising from that state of the law were obviated by a second enactment of the act of 1791. Laws 1842, ch. 49. That, therefore, dispenses with those statements, the omission of which is the foundation of the first objection. There is but one statute punishing the crime of perjury, that which is contained in Revised Statutes, ch. 34, secs. 50 and 52; S. v. Ball, 25 N.C. 506; and, consequently, the conclusion of this indictment is right. The act of 1842 relates only to the forms of prosecuting, and not to the creating, defining, or punishing the offense.
Judgment affirmed. Cited: S. v. Arthur, 13 N.C. 217; S. v. Gallimon, 24 N.C. 372; S. v. Powell, 106 N.C. 638; S. v. Peak, 130 N.C. 717; S. v. Marsh, 132 N.C. 1002.