State v. . Kirkman, 10 S.E. 312

State v. . Kirkman

10 S.E. 312 | N.C. | 1889

The defendants were found guilty by a jury, and on motion of their counsel the judgment was arrested on the ground that the usual concluding words, "against the peace and dignity of the State," were omitted from the indictment. The State appealed. The conclusion, "against the peace and dignity of the King," was held in England to be necessary in all indictments. No reason was assigned for it except that it had been customary. It furnished no light to the defendant, and its employment was not required by any statute. As every criminal offense is, in its nature, "against the *630 peace," its use is tautology, and doubtless originated in the rhetorical flourish of some ancient and forgotten pleader.

In our Constitution of 1776 it was provided that indictments should conclude, "against the peace and dignity of the State," but this requirement is in the same clause which regulates the form in which commissions, grants and writs shall run, and was evidently intended (912) merely to place in the organic law a provision that in all legal proceedings and documents thereafter the word "State" should be substituted for "King" in all places where the latter had till then been customarily used. The Constitution of 1868 omits this requirement.

Ever since 1784 "it has been the evident tendency," as is said by Ashe,J., in S. v. Parker, 81 N.C. 531, "of our courts, as well as our lawmakers, to strip criminal actions of the many refinements and useless technicalities with which they have been fettered by the common law, the adherence to which often resulted in the obstruction of justice and the escape of malefactors from merited punishment." The first step in that direction was the act of 1784, applicable to indictments and criminal proceedings in the county courts, and which by the act of 1811, was extended to criminal proceedings in the Superior Courts as well. This act has now become sec. 1183 of the Code, and provides: "Every criminal proceeding by warrant, indictment, information or impeachment shall be sufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligent and explicit manner, and the same shall not be quashed nor the judgment thereon stayed by reason of any informality for refinement, if in the bill of proceeding sufficient matter appears to enable the court to proceed to judgment." Then followed the provision of the Revised Code of 1854, now sec. 1189 of the present Code, that "no judgment upon any indictment shall be stayed or reversed for the want of the averment of any matter unnecessary to be proved.

The omission in the present Constitution of the requirement that indictments shall conclude "against the peace and dignity of the State," was not made without a purpose, and is in accord with the manifest tendency to simplify criminal as well as civil proceedings, and to try all causes upon their merits, stripped of useless refinements and (913) technicalities, which never aid and often hinder the due administration of justice. This tendency is shown in many decisions of this Court, which hold to be sufficient indictments concluding "against the act of Assembly," "against the statute," "against the form of the statute," etc. S. v. Tribatt, 32 N.C. 151; S. v. Moses, 13 N.C. 452; S.v. Smith, 63 N.C. 234; S. v. Evans, 69 N.C. 40; S. v. Davis, 80 N.C. 384.

In S. v. Parker, 81 N.C. 531, above cited, the court held sufficient an indictment concluding "against the peace and dignity," omitting the *631 words "of the State," though it would seem that the omitted words were precisely the material ones required by the constitutional provision of 1776. At this term we have held also, in S. v. Sykes, ante, 694, that a conclusion "contrary to law" is sufficient.

In S. v. Moses, above cited, the elder Ruffin, than whom a greater lawyer never sat on this bench, refers to the fact that "many sages of the law had called nice objections of this sort a disease of the law and a reproach to the bench." He expresses the opinion that by the act of 1811 (now Code, sec. 1183) "the Legislature meant to disallow the whole of them and only require the substance, that is, a direct averment of those facts and circumstances which constitute the crime to be set forth."

We are not unaware that a contrary opinion to ours has been held in S.v. Joyner, 81 N.C. 534. But in view of the broad and clear expressions of the statute we cannot hold that case as authority and deem the reasoning used and the conclusion reached in the case above cited of S. v. Parker, in the same volume, more consonant with the expressed will of the legislative power.

Indeed, it may be noted that even in England, where the words "against the peace of the King" are held material, it is considered that their omission is not ground for a motion in arrest of judgment, but the objection must be taken at an earlier stage. Archbold Criminal Pleading, p. 58. Our statute makes the bill "sufficient in form for all intents and purposes if it express the charge against the (914) defendant in a plain, intelligible and explicit manner," and if that is done forbids that the bill should either be "quashed or judgment arrested" by reason of any informality or refinement.

The judgment in arrest must be set aside and the case remanded to the Superior Court that it may proceed to pass judgment in conformity with this opinion.

Per curiam. Error.

Cited: S. v. Harris, 106 N.C. 688; S. v. Arnold, 107 N.C. 863; S. v.Peters, 882; S. v. Peebles, 108 N.C. 768; S. v. Call, 121 N.C. 649; S.v. Hester, 122 N.C. 1052; S. v. Craft, 168 N.C. 212. *632