Opinion
June Term, 1824.
1. If an indictment charges an offense to have been committed on a day which is yet to come, it is as defective as it would be were no day laid.
2. Indictments are not within the statutes of jeofails. Being found by a grand jury on oath, the court cannot amend them without the concurrence of the grand jury which finds them.
INDICTMENT for an assault with intent to kill, tried before Paxton, J. The bill was found in March Term, 1824, and charges the offense to have been committed on 19 August, 1824. The defendant was put upon trial at the same term in which the bill was found, and after the jury was impaneled the prosecuting officer moved the court to amend the indictment as to the day on which the offense is charged to have been committed. The court overruled the motion, and the jury found the defendant guilty in manner and form as charged in the bill of indictment, and judgment was arrested because the offense was laid to have been committed on a day yet to come. (185)
It is a familiar rule that the indictment should state that the defendant committed the offense on a specific day and year, but it is unnecessary to prove in any case the precise day and year, except where the time enters into the nature of the offense. But if the indictment lay the offense to have been committed on an impossible day or on a future day, the objection is as fatal as if no time at all had been inserted. Nor are indictments within the operation of the statutes of jeofails, and cannot, therefore, be amended. Being the finding of a jury upon oath, the court cannot amend without the concurrence of the grand jury by whom the bill is found. These rules are too plain to require authority, and show that the judgment of the court was right, and must be
PER CURIAM. Affirmed.
Cited: S. v. Cody, 119 N.C. 909