Opinion
June Term, 1872.
It is still necessary, in an indictment for felony, in this State, to charge the act constituting the crime to have been done "feloniously," and that word cannot be supplied by any equivalent.
INDICTMENT for burning a barn containing grain, tried at Spring Term, 1872, of BLADEN, before Russell, J.,
Attorney-General, Battle Son, and Dupre, for State.
No counsel for defendants.
The indictment charged that the defendants, "on 23 July, 1871, with force and arms, at and in the county of Bladen aforesaid, " unlawfully and willfully did set fire to and burn a barn, the property of" etc., "the same at the time of the burning thereof having grain in it," etc.
Verdict of guilty. Motion in arrest of judgment by defendants, because the burning was not charged to have been done (26) feloniously. Motion allowed and appeal by the Solicitor.
There is no error. This case is governed by S. v. Jesse, 19 N.C. 297.
In that case Chief Justice Ruffin says that the office of the term feloniously is to describe the offence. It denotes, at the instant of the doing of an act, the disposition of the accused in doing it, which constitutes the guilty will that renders the person criminal. It is therefore one of the constituents of the offense. The Chief Justice further says, "it is necessary for another purpose, which is distinctly and immediately to apprise the Court of the degree of punishment that may be inflicted and demanded, and thus to regulate the mode of trial." And the books of authority lay it down that this word feloniously can not be supplied by any periphrasis or word equivalent. The decision in the case of Jesse was since our acts curing formal defects in indictments.
PER CURIAM. Affirmed. Cited: S. v. Rucker, 68 N.C. 212; S. v. Skidmore, 109 N.C. 797; S. v. Coldwell, 112 N.C. 855; S. v. Bunting, 118 N.C. 1200; S. v. Mallett, 125 N.C. 724; S. v. Holmes, 153 N.C. 608.
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