72 N.C. 445 | N.C. | 1875
The indictment is fatally defective in this: It does not allege that the defendant entered upon the land "without a license therefore."
The rule is, an indictment must set out every matter which is necessary in order to give a description of the offence charged. The offence created by the act of 1866, chapter 61, to be found in Battle's Revisal, chapter 32, section 116, is "an entry upon the land of another," after being forbidden to do so, and "without a license therefor."
So the fact of an entry, without a license therefor, is just as an essential a part of the description as "after being forbidden to do so."
When the offence is complete without reference to a license, and the fact of a license constitutes merely an excuse or justification, the bill of indictment need not negative the license; but by this statute, in theenacting clause, it is made a part of the description of the offence — all of the authorities are in accord upon this point, and it is not our duty to take the trouble to cite cases for the edification of those whose duty it is to draw indictments.
The suggestion of the Attorney General, that "the license" referred to in the enacting clause, is the license of the owner, and is sufficiently negatived by the averment, "after being forbidden to do so," is clearly a misapprehension. The reference is to the license, set out in the proviso, to be obtained from a Justice of the Peace, to search for stray cattle, c.
Error.
PER CURIAM. Judgment arrested. *447
