29 N.C. 39 | N.C. | 1846
After a resolution in Long's case, 5 Rep., 120, that certainty to a certain intent in general is required in indictments, and no more, LordCoke states a further resolution, that charging a stroke on the head, or on the face, or upon the right hand, or left arm, is sufficient, though not specifying on what part of the head or face the stroke was given, or whether it was on the back or palm of the right or left hand, or on what part of the arm; but that super manum, or super brachium, or super latus, without "the right" or "the left," is not sufficient, because in such cases the part of a man in which the wound is is not certain. The reason of the distinction is obvious enough. There is but one head or face, and therefore it sufficeth to say "the head" or "the face," being that degree of certainty which is requisite in an indictment. In like manner there is but one "right hand," and the law does not *38
require a certainty that shall be carried to every particular of the part or parts of that member injured. But when the injury is to a member of the body of which there are two, it is but a certainty to a certain intent in general to designate that one of the two to which the (41) injury was done. It is certain, therefore, that at common law, in charging the mortal wound on the hand, arm, side, or leg, in an indictment for murder, it was indispensable to state it to be the right or the left arm, hand, side, or leg. But it is equally clear that this was requisite as a matter of form in the indictment, from respect to precedents, and to no other purpose. It was not regarded as one of those substantial averments to which the proof must correspond in manner and form; for Lord Hale states "that an indictment for murder, besides laying the act to have been done felonice, and ascertaining the time, must have these certainties and requisites: (1) Declare with what it was done, namely, cum gladia; though killing with another weapon maintains the indictment. (2) Must show in what hand the sword was held; and for want of that an indictment had been quashed. (3) It ought to show in what part of the body the deceased was wounded, and therefore, if it be on the hand or arm, without saying whether right or left, it is not good. (4) The length and depth of the wound is to be shown." Yet he adds, "But, though the manner and place of the hurt and its nature be requisite, as to the formality of the indictment, yet if, upon evidence, it appears to be another kind of wound in another place, if the party died of it, it is sufficient to maintain the indictment." Thus we see that so great respect was paid to the form of indictments, as settled by precedents, that an indictment was actually quashed for not averring which hand held the weapon with which the wound was given; but, nevertheless, the evidence need not show that it was with or on the right or left hand, though so laid in the indictment. Archb. Cr. Pl., 315. It was upon that ground, namely, that the manner and form of laying the cause of the death and describing the wound was not of the substance of the indictment, that the Court held, in S. v. Moses,
When it is thus seen that an indictment for a capital felony, which charges a mortal wound in the right ear, is supported by evidence of the wound in the left ear, it would seem to follow necessarily that an indictment for the misdemeanor of biting off the right ear is, in like manner, sustained by proof that the left ear was bitten off. The offense by the statute is biting off "an ear," and as there is not difference in the crime, whether it be one or the other, the substance of the offense charged is established by proof that it was either ear. As Lord Hale says, it is fit to be laid as near the truth as may be, yet if upon the evidence it appear to be a wound in another place, it is sufficient. There must doubtless be a charge of biting off an ear, because that member is the specific object of the enactment; but it is not necessary the indictment should state whether it be the right or the left ear, to enable the accused to defend himself, or to inform the court of the act creating the offense or of the punishment prescribed, nor to give the party the full benefit of the plea of former acquittal or conviction. If not good in this general form upon the principles of the common law applicable to the mode of *40 charging offenses against the person of another, the Court holds that it is clearly good under the act of 1811, because the corpus delicti, as constituted by the statute, namely, "on purpose and unlawfully, but without malice aforethought, biting off an ear of another person," is described in it in a plain, intelligible, and explicit manner. Therefore the refusal to pass judgment on the indictment under the statute was erroneous.
Further proceedings may be had on the verdict accordingly.
(44) PER CURIAM. Error.
Cited: S. v. Shepherd,