ÆäÀÌÁö À̹ÌÁö
PDF
ePub

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; 37 S. E. 193.

MULTIFARIOUSNESS.-Allegations of different phases of the same transaction does not make the indictment multifarious. Jarvis, 129-698; 40 S. E. 220. JOINDER. A joinder of counts is not objectionable where the several counts are simply descriptive of the same transaction in different ways. Howard, 129-584; 40 S. E. 71.

BILL FOUND ON INCOMPETENT TESTIMONY.-The finding of an indictment upon the evidence of witnesses, one of whom is incompetent, does not invalidate the indictment. Coates, 130-701; 41 S. E. 706.

NAME-VARIANCE.-Where the indictment gives the Christian name of defendant as Robert and the evidence is that he is often called "Burt" for short, and counsel make no defense on the ground of a variance, a new trial will not be awarded on that ground. Angel, 29 (7 Ired.), 29.

If it appear to the court that the person indicted is really before the court it matters not by what name he is called. Newmans, 1-171.

TWO COUNTS-TRIAL DIRECTED TO ONLY ONE.-Where there are two counts, but the evidence, instructions, and arguments of counsel, all refer to one count only, it will be presumed that the verdict followed the trial and related to such count. May, 132-1020; 43 S. E. 819.

EACH COUNT MUST BE COMPLETE IN ITSELF.-A defective count can not be aided by reference to another count. May, 132-1020; 43 S. E. 819.

NOT RETURNED IN OPEN COURT—Waiver.—An objection that the bill was not returned in open court is waived by pleading and moving for a severance before moving to quash. Ledford, 133-714; 45 S. E. 944.

VERDICT ON EACH COUNT.-If there are two counts and a general verdict of guilty, the verdict is on each count, and if one of them is defective the verdict will be imputed to the good count. Holder, 133-709; 45 S. E. 862.

NEED NOT BE SIGNED BY FOREMAN.-It is not necessary that the foreman sign his name to the endorsement "a true bill." Calhoon, 18 (1 D. and B.), 374. A bill of indictment must be signed by the foreman of the grand jury and sanctioned by the grand jury. Vincent, 1-105.

It is not essential to the validity of a bill of indictment that it should be signed by the prosecuting officer. Vincent, 1-105.

INFANTS.

An infant under fourteen years of age is not liable to indictment for an or dinary misdemeanor unless the facts exhibit brutal passion, the use of a deadly weapon, the infliction of maim, or other acts of like character. Yeargan, 117-706; 23 S. E. 153.

The rule as to the liability of infants for crime is

1. Under seven years of age an infant can not be indicted and punished for any offense;

2. Between seven and fourteen an infant is presumed to be innocent, but the presumption in certain cases may be rebutted. The cases in which such presumption may be rebutted and the accused punished when under fourteen are such as an aggravated battery as in maim, or the use of a deadly weapon, or in numbers amounting to a riot, or a brutal passion as in an attempt at rape,

and the like. In such cases malice and wickedness supply the want of age, and if defendant be doli capax he must be punished. Yeargan, 117-706; 23 S. E. 153.

An infant between seven and fourteen years of age may be punished for a maim if found doli capax. Yeargan, 117-706; 23 S. E. 153.

An infant under the age of fourteen years, who played at a game of chance called "shooting craps" well knowing the difference between right and wrong, but who did not know the act was unlawful, is not indictable for gambling. Yeargan, 117-706; 23 S. E. 153.

An infant is not indictable for disposing of mortgaged property, since the alleged disposition amounts to a disaffirmance of the contract. Howard, 88— 650.

An infant between seven and fourteen years of age may be punished for an aggravated battery with a deadly weapon if he be doli capax. Yeargan, 117706; 23 S. E. 153.

The question as to whether a witness has sufficient mental capacity and sense of moral obligation to testify in a case is one of fact to be determined by the court, and can not be reviewed on appeal. Edwards, 79-648.

Whether an infant has sufficient intellect and sense of the obligation of an oath to be competent as a witness is a matter within the discretion of the trial judge, and his action is not reviewable. Manuel, 64-601.

The court is the exclusive judge whether a witness has sufficient intelligence to testify. Perry, (44 Busb.), 330.

Where the defense is

burden lies upon him. and jury may decide.

that defendant is under age of presumed capacity the If the age can be ascertained by inspection the court Arnold, 35 (13 Ired.), 184.

The ruling of the court upon the question as to whether an infant has sufficient capacity to testify is not reviewable. Finger, 131–781; 42 S. E. 820.

If an infant serve on the grand jury a plea in abatement will lie as to all bills in whose finding he took part. Perry, 122–1021; 29 S. E. 384.

INFANT BLINDNESS.

Sec. 541. To prevent blindness in newborn children.

That it shall be unlawful for any physician to neglect or otherwise fail to instill or have instilled immediately upon its birth in the eyes of the newborn babe a suitable amount of a one per cent. solution of nitrate of silver.

Should any midwife, or nurse or person acting as nurse, having charge of an infant in this state, notice that one or both eyes of such infant are inflamed or reddened at any time within two weeks after its birth it shall be the duty of such midwife or nurse, or person acting as nurse, so having charge of such infant, to report the fact in writing within six hours to the health officer, or some qualified practitioner of medicine, of the city or town in which the parents of the infant reside.

Every health officer shall furnish a copy of this act to each person who is known to him to act as midwife or nurse in the city or town for which such health officer is appointed, and the secretary of state shall cause a sufficient number of copies of this act to be printed, and supply the same to the health officer and state board of health on application.

Any person violating this act shall be guilty of a misdemeanor and upon conviction shall be fined not less than five ($5) dollars nor more than ten ($10) dollars.

1915, c. 272.

INFERENCE OF FACT.

Where the propriety of admitting evidence depends upon an inference of fact, such inference must be drawn by the court, and the admission of such evidence founded upon the inference can not be assigned as error. (2 D. and B.), 9.

Swink, 19

INJUNCTION.

A court of equity has no jurisdiction to interfere by injunction to restrain a criminal prosecution, whether the prosecution be for the violation of a statute or ordinance, and whether the prosecution be by indictment or summary process, and this rule applies to threatened prosecutions as well as to those already commenced. Railroad, 145-495; 59 Š. E. 570.

A federal court can not enjoin a criminal prosecution in the state court for charging excessive passenger fare. Railroad, 145-495; 59 S. E. 570.

INJURING PERSON IN ANOTHER STATE.

Sec. 542 (3237). Person in this state injuring one in another.

If any person, being in this state, shall unlawfully and willfully put in motion a force, from the effect of which any person shall be injured while in another state, the person so setting such force in motion shall be guilty of the same offense in this state, as he would be if the effect had taken place within this state.

1895, c. 169.

Where one puts in force an agency for the commission of crime he, in legal contemplation, accompanies the same to the point where it becomes effectual; the criminal act is the impinging of the weapon on the party injured, and that is where the impingement happens, therefore, where one, standing in North Carolina, by the firing of a bullet, killed another standing in Tennessee, the

assault or stroke was in the latter state and at common law the murder was committed in that state, and its courts alone have jurisdiction of the offense. Hall, 114-909; 19 S. E. 602.

Where the fatal stroke and death occur in the same state, the offense of murder at common law is there complete, and the courts of that state can alone try the offender for that specific common law crime. Hall, 114-909; 19 S. E. 602.

[This case was decided prior to the enactment of the foregoing statute.]

INJURY TO PROPERTY.

See also INJURY TO STOCK LAW AND FENCES.

Sec. 543 (3673). Houses, churches, fences, walls; injuries to. If any person shall, by any other means than burning or attempting to burn, unlawfully and willfully demolish, destroy, deface, injure, or damage any of the houses or buildings previously mentioned in this chapter; or shall unlawfully and willfully burn, demolish, pull down, destroy, deface, damage, or injure any church, uninhabited house, outhouse, or other house or building not mentioned before in this chapter; or shall unlawfully and willfully burn, destroy, pull down, injure, or remove any fence, wall, or other inclosure, or any part thereof surrounding or about any yard, garden, cultivated field or pasture, or about any church, graveyard, factory, or other house in which machinery is used, every person so offending shall be guilty of a misdemeanor. Code, s. 1062; (R. C.), c. 34, s. 103.

STATUTE NOT IN CONFLICT WITH SECTION 642.-There is no conflict between this section and section 642, and an indictment charging that defendant did cut and destroy "a wire fence enclosing a pasture," may be sustained under the above section. Biggers, 108-760; 12 S. E. 1024.

TENANTS. This section does not embrace the case of injury to a building by a lessee during the continuance of his term. Whitener, 92-798.

The husband of the prosecutrix leased a field of defendant under an agreement by which the husband was to put a fence around the field, which he did. The husband died and prosecutrix continued in possession up to the fence, but the fence in fact was a division fence between prosecutrix and another tenant of defendant. Defendant, upon notice to the prosecutrix, removed the fence, she forbidding the removal: Held, that defendant was guilty. Piper, 89—

551.

Where the tenant of the prosecutor in possession of a house simply goes out of the same, and takes a lease from the defendant, and then goes back professedly under the lease from defendant, his relation as tenant to the prosecutor remains, his possession as tenant not having been surrendered to the original landlord; and where, in such case, the prosecutor, after an abandonment of the premises by the tenant, goes to the house and stores his fodder and some tools in it and fastens the doors, and the defendant afterwards goes to

the house and bursts open the door, defacing it by splitting off part of the facing, and takes up the sleepers in one of the rooms and puts his mules in there, the defendant is guilty of willful injury to the house, though he had a deed to the premises older than that under which the prosecutor claimed, and had been advised by his attorney to enter and take possession, since his taking such a violent and injurious possession of the house while the prosecutor was so in possession was a willful injury to the house, and the question of a bona fide belief that he was the owner and had a right to enter does not apply. Howell, 107-835; 12 S. E. 569.

PERSON ENTERING MUST BE A TRESPASSER.-One who peaceably enters on land and erects houses thereon under the belief that he had the right to do so, but, being still in possession, tears them down and removes them on discovering that he was on the lands of another, is not such a trespasser as would make him guilty. Reynolds, 95-616.

PROSECUTOR MUST HAVE POSSESSION.-While the prosecutor has neither the actual nor constructive possession of the houses demolished, defendant must be acquitted. Reynolds, 95-616.

WHAT CONSTITUTES A "CULTIVATED FIELD."-A piece of land cleared, fenced and used for cultivation according to the ordinary course of husbandry, although nothing may be growing thereon at the time of the trespass, is a "cultivated field" within the meaning of the statute. McMinn, 81-585.

A field in a course of preparation for making a crop, though no crop is actually planted, is a cultivated field within the meaning of the statute. Allen, 35 (13 Ired.), 36.

A town lot is a “field” within the meaning of the statute. McMinn, 81-585. It is not indictable for one to remove a fence from his own land which had been unlawfully put there by another, though it partially encloses a cultivated field belonging to the other. Headrick, 48 (3 Jones), 375.

WHAT KIND OF FENCE IS PROTECTED.-An erection, consisting of posts nine or ten feet apart on which slats were nailed, placed by the side of a road and separating it from a field, but which did not connect with any fence or surround the field, is not such a fence as is protected from injury. Roberts, 101-744; 7 S. E. 714.

INDICTABLE THOUGH DEFENDANT HAS BETTER TITLE.-The removal of a fence from around a cultivated field in the possession of another is indictable, though defendant may have a better title to the premises than the prosecutor. Hovis, 76-117.

.

TITLE.-Where a person has neither possession nor right of possession to land, he can not, on indictment for unlawfully removing a fence therefrom, raise a question as to the right of entry, nor is it any defense that he did the act to bring on a civil suit in order to try the title. Graham, 53 (8 Jones), 397.

An omission to conclude contra forma statui is fatal to the indictment. Hill, 79-656.

INJURY TO CATTLE NOT INDICTABLE AT COMMON LAW.-The wounding of cattle maliciously is not an indictable offense at common law. Manuel, 72-201.

VARIANCE.-Proof of injury to an ox will not support an indictment charging injury to a cow. Hill, 79-656.

OWNER TURNING HIS STOCK OUT IN STOCK-LAW TERRITORY.-It is no defense to an indictment for injury to live stock that the stock law prevailed in the community, and the prosecutor turned his stock out, or permitted them to run at large through negligence, since in such cases the stock may be impounded. Brigman, 94-888.

« ÀÌÀü°è¼Ó »