Sec. 479 (3255). Defects which do not vitiate.

No judgment upon any indictment for felony or misdemeanor, whether after verdict, or by confession, or otherwise, shall be stayed, or reversed for the want of the averment of any matter unnecessary to be proved, nor for omission of the words "as appears by the record," or of the words "with force and arms," nor for the insertion of the words "against the form of the statutes" instead of the words "against the form of the statute," or vice versa; nor for omission of the words "against the form of the statute" or "against the form of the statutes," nor for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened; nor for want of a proper and perfect venue, when the court shall appear by the indictment to have had jurisdiction of the offense.

Code, s. 1189; (R. C.), c. 35, s. 20; 7 Hen. VIII, c. 8.

A defect in an indictment for homicide in stating that deceased died in a certain year, when, in fact, he died the year before, is cured by the statute. Jones, 80-415.

The omission of the word "year" in an indictment for the removal of a crop where the renting is charged to have been "for the term of one," omitting the word "year," does not vitiate the indictment. Walker, 87

541.

It is not necessary that an indictment should conclude "against the peace and dignity of the state." Overruling State v. Joyner, 81 N. C., 534, on this point. Kirkman, 104-911.

A conclusion against the form of the statue instead of statute is no ground for arrest of judgment. Smith, 63-234.

Laws conferring, withdrawing or limiting jurisdiction over pre-existing common law offenses do not become a constituent part of the offenses to which they apply, and indictments under such statutes need not conclude against the form of the statute. Williamson, 81-540.

Sec. 480. Bill not waived.

The waiving of the finding and return into court of a bill of indictment in any criminal action shall not be allowed in the superior courts of this state, except in cases wherein the offense. charged is a misdemeanor which does not include or contain the element of fraud, deceit or malice; nor shall such waiver be made. in any such action except upon a plea of guilty, or a submission, or a plea of nolo contendere by the defendant in the same.

No such waiver of a bill of indictment shall be allowed by the court unless by the consent of the defendant's counsel in such action, who shall be one either employed by the defendant to

defend him in the action or one appointed by the court to examine into the defendant's case and report as to the same to the court; which service by an attorney so appointed by the court shall be rendered without fee or reward.

1907, c. 71.

INDICTMENT-GENERAL.

NEW BILL MAY BE SENT.-A bill of indictment returned "not a true bill" can not be reconsidered by the same grand jury, but a new bill may be sent. Brown, 81-568.

Where a bill is ignored, a new one charging defendant with the same offense may be sent to the same grand jury, and the same and additional evidence produced to support it. Harris, 91-656.

The state is not restricted to the first indictment found, but may at any time before trial send another and require defendant to answer that. Dixon, 78-558.

NO AMENDMENT WITHOUT SENDING TO GRAND JURY.-Indictments are not within the operation of the statute of jeofails, and can not be amended without concurrence of the grand jury. Sexton, 10 (3 Hawks), 184.

BILL OF PARTICULARS.-Where the indictment does not convey sufficient information to enable the defendant to prepare for his trial, he may apply to the prosecuting officer for a bill of particulars, and if refused he may apply to the court to direct that a bill of particulars be furnished. Brady, 107-822.

ACCOMPLICE WHO TESTIFIES MAY AFTERWARD BE INDICTED.-The fact that an accomplice is introduced as a witness and testifies to such facts as are within his knowledge, withholding nothing because of its tendency to criminate himself, does not constitute a legal defense to a prosecution against him. He has an equitable claim to executive clemency, or the solicitor may enter a nol pros. Lyon, 81-600.

SIGNING NOT NECESSARY.-An indictment need not necessarily be signed by any one, or if signed by an attorney other than the regular solicitor, it is sufficient. Mace, 86-668.

THE WORD "FELONIOUSLY" MUST BE USED IN FELONIES.-The word "feloniously" is absolutely necessary in every indictment charging a felony, and it can not be dispensed with or its use supplied by any circumlocution. Rucker, 68-211.

A MISTAKE IN MARKING "A TRUE BILL," How SHOWN.-If a bill of indictment be endorsed a true bill" by mistake, when the grand jury had ordered their clerk to endorse it "not a true bill," the defendant may show that fact by affidavit or otherwise, either upon a motion to quash or plea in abatement, and thereupon the indictment should be quashed. Horton, 63-595.

BAIL MAY BE REQUIRED WHEN BILL IS QUASHED.-Where an indictment is quashed, it is competent and proper for the court to require the defendant to give bail to answer another indictment for the same offense. Griffice, 75-316. NAME OF PERSON UNKNOWN.-Although the name of the person on whom an offense is charged to have been committed be to the jurors unknown, yet the proof must identify the party injured as completely as if his real name appeared in the indictment. Trice, 88-627.

EFFECT OF VARIANCE.-The effect of a variance between the allegation and proof is to vacate the verdict and leave the defendant charged as before and liable to be tried again. Sherrill, 82-694.

VERDICT SET ASIDE-NEW BILL.-Where, after verdict, and judgment against defendant, the court set the same aside and granted a new trial, it is allowable to put the defendant upon trial on a new indictment found at the same term, upon the same testimony of the same witnesses, the two bills being treated as several counts in the same indictment. Lee, 114-844.

SECOND BILL AT SAME TERM.-Where an indictment is of doubtful validity it is proper practice to send a second bill at the same term at which the first stood for trial. Lee, 114-844.

GENERAL VERDICT ON TWO COUNTS, ONE DEFECTIVE.-Where there are two counts, one good and the other defective, and a general verdict of guilty is rendered, the presumption is that the conviction was upon the good count and that the evidence supported the conviction. Edwards, 113-653.

When there are two bills found at the same term and the defendant is tried and convicted upon both, the two bills constitute, in effect, counts in the same bill, and if either is good it supports the verdict. Perry, 122-1018.

WHEN CAPTION TO INDICTMENT NECESSARY.-A caption to an indictment is necessary only when the court acts under a special commission, since when the court sits by authority of a public law everybody must take notice of it, and it is not necessary specially to set forth the power of the court. Wasden, 4 (Tay. Term), 596.

DUPLICITY.—Duplicity in a bill of indictment is ground only for a motion to quash, and being cured by verdict, is not ground for a motion in arrest of judgment.-Wilson, 121-650.

DUPLICITY CURED BY VERDICT.-An indictment for larceny containing but one count, charging the ownership of the property stolen as 100 pounds of cotton the property of C, 100 pounds cotton the property of G, is bad for duplicity and obscurity, but if objection is not taken by motion to quash in apt time the defect is cured by the verdict. Simons, 70-336.

While a bill containing unnecessary averments is bad for duplicity such defects are cured by a verdict. Hart, 116-976.

CONSOLIDATION OF INDICTMENTS.-Where the defendant is charged in four separate indictments with larceny, the court may consolidate and treat them as if the several offenses charged had been embraced in one indictment containing different counts. Such consolidation, however, should only be allowed in cases where the presiding judge is satisfied that the ends of justice require it, and the solicitor should be forced to elect on which bill he asks for a conviction before the defendant is required to give his evidence. McNeill, 93-552.

The finding of a new bill for the same felony, varying the terms in which the offense is charged, is simply adding a new count, and the whole constitutes but one proceeding. Johnson, 50 (5 Jones), 221.

NEGATIVING PROVISO.-The general rule as to the form of statutory indictments is that it is not requisite, where they are drawn under one section of the act to negative an exception contained in a subsequent distinct section of the same statute. Harris, 119-811.

"THEN AND THERE."-The words "then and there" in an indictment have reference only to the time and to the venue, and not to any public place before mentioned. Langford, 25 (3 Ired.), 354.

THE TIME. All that is necessary as regards laying the time in an indictment is that the offense appear to have been committed before the finding of the bill, except in those cases where time forms part of the offense. Haney, 8 (1 Hawks), 460.

The date in an indictment is not material. Williams, 117—753.

DUPLICITY. To charge two separate and distinct offenses in the same count is bad for duplicity, and the bill may be quashed on motion in apt time, but the objection is waived by failing to move in apt time and is cured by a nol. pros. as to all but one charge, or by verdict. Burnett, 142-578.

ELECTION. When an indictment charges several distinct offenses in different counts, whether felonies or misdemeanors, the bill is not defective, though the court may in its discretion compel the solicitor to elect, if the offenses are actually distinct and separate; but there is no ground to require the solicitor to elect when the indictment charges the same act under different modifications, so as to correspond with the precise proofs that might be adduced. Burnett, 142-578.

NO ENDORSEMENT.-No endorsement on a bill of indictment by the grand jury is necessary. The record that it was presented by the grand jury is sufficient in the absence of evidence to impeach it. Sultan, 142—565.

WITNESSES NOT MARKED SWORN.-A motion to quash an indictment, on the ground that it did not appear that any of the witnesses before the grand jury were sworn, was properly refused, where there was no evidence that the witnesses were not sworn, and the only defect alleged was that the blank space after "thus," in the certificate, "witnesses whose names are marked thus were sworn and examined," was not filled in with a cross-mark or check. Sultan, 142-569.

PUBLIC LOCAL STATUTE.-An act of a public local nature need not be specially averred in the indictment, as the court will take judicial notice of it. Piner, 141-760.

USELESS MATTER.-Useless matter in an indictment may be rejected as not affecting the substance of the charge.-Piner, 141-760.

CHANGING OFFENSE.-The court has no power to change an indictment so as to charge an offense entirely different and calling for a punishment entirely different from and not included in that passed upon by the grand jury, and no consent or submission of the defendant can give the court jurisdiction of the substituted offense.-Jones, 101-719.

QUASHING. A motion to quash made after verdict can not be entertained. Barbee, 93-498.

After a motion to quash an indictment containing two counts, one of which is defective, the solicitor may enter a nol pros. as to the defective count, and try on the other. Buchanan, 23 (1 Ired.), 59.

The judges are in no case bound, ex debito justitiæ, to quash an indictment however defective, but may require the defendant either to plead or demur, and it is a general rule that no indictment will be quashed which charges the higher offenses, as treason or felony, or those crimes which immediately affect the public, as perjury, forgery and like offenses. In such cases the court will hold the prisoner and permit the solicitor to send a new bill curing the defect. Quashing, though allowable, is not favored, since it releases recognizances and sets defendants at liberty when they ought to be held. Flowers, 109-841.

A bill charging a felony should not be quashed, but the defendant should be held until a new bill can be sent. Caldwell, 112-854.

GRAND JUROR SERVING AS JUROR ON THE TRIAL.-The fact that a member of the grand jury which returned a true bill for perjury was one of the petit jury that tried the issues in an action wherein it was charged the perjury was committed, is no ground for abating or quashing the indictment. Wilcox, 104-847.

MOTION TO QUASH.-A motion to quash made after verdict can not be entertained. Barbee, 93-498.

Where there are two defendants, and the bill shows that they were "sworn and examined," and the grand jury ignored the bill as to one and found a true bill as to the other, there is no presumption of law that the latter defendant was examined against himself, and a motion to quash and to arrest judgment on this account were both properly refused. Frizell, 111–722.

PROVISO. There are two kinds of provisos-the one in the nature of an exception, which withdraws the case provided for from the operation of the act, the other adding a qualification whereby a case is brought within that operation. When the proviso is of the first kind it is not necessary to negative the proviso; it is left to the defendant to show that fact by way of defense; but in a proviso of the latter description the indictment must bring the case within the proviso. Burton, 138-575.

Where the words contained in a proviso or exemption are descriptive of the offense and a part of its definition, it is necessary, in stating the crime charged, that they should be negatived in the indictment, and where the statute does not otherwise provide, and the qualifying facts do not relate to the defendant personally, and are not peculiarly within his knowledge, the allegation, being a part of the crime, must be proved by the State beyond a reasonable doubt. Connor, 142-700.

The indictment need not negative a proviso which merely withdraws a case from the operation of the statute; aliter where the proviso adds a qualification to the enactment so as to bring a case within it which, but for the proviso would be without the statute. Norman, 13, (2 Dev.), 222.

TWO COUNTS-TESTIMONY AS TO ONE ONLY.-Where there are three counts in a bill, and testimony is offered as to only one, it will be presumed that the verdict, though general, is given on the count to which the testimony was applicable. Long, 52-24.

SEVERAL COUNTS-ONE DEFECTIVE.-Where there are several counts and a verdict of guilty upon two, judgment can not be arrested because one of the two was defective. Tisdale, 61-220.

TIME ALLEGED AND PROVEN.-It is sufficient to prove on the trial that the offense was committed before the prosecution was commenced, except in cases where time is of the essence of the offense. Newsom, 47—173.

OFFICERS REPAIR OF JAIL.-An indictment charging that public officers whose duty it was to levy taxes to build a jail permitted the jail to go to ruin and decay can not be sustained. Justices of Lenoir, 11 (4 Hawks), 194. SECOND BILL.-A second bill may be found and defendant put to trial on that without disposing of the first bill. Tisdale, 19 (2 D. and B.) 159.

WHERE AUTHORITY TO ACT MUST BE NEGATIVED.-Where a statute makes the doing of a particular act indictable, without the authority of either one of two things, the indictment must negative the existence of both these things, Loftin, 19 (2 D. and B.) 31.

BILL MUST BE SIGNED AND SANCTIONED.-A bill of indictment must be sanctioned by the grand jury and signed by the foreman. Vincent, 1-105. CAPTION. The caption to an indictment should describe the court before which it is found that the court can exercise jurisdiction. Sutton, 5 (1 Mur.) 281.

PUNISHMENT-Grade of OfFENSE.-Where a statute renders an act which was criminal at common law more penal when done under particular circumstances, the indictment must specify the offense as it is described in the statute, otherwise only the common law judgment can be pronounced. Jernigan, 7 (3 Mur.) 12.

TWO INDICTMENTS TREATED AS TWO COUNTS.-Where there are two indictments for the same offense they may be treated as two counts in the same bill, and if either is good it will support the verdict. Railway, 125-666.

ENDORSEMENT ON BILL.-The endorsement "a true bill" is essential to the validity of an indictment, and a bill endorsed, "this bill found," is not sufficient. McBroom, 127-528.

MULTIFARIOUSNESS.-Allegations of different phases of the same transaction does not make the indictment multifarious. Jarvis, 129-698.