State v. . Parker, 81 N.C. 548

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81 N.C. 548 | N.C. | 1879

This prosecution is founded on Ch. 32, Sec. 95, of Battle's Revisal, for abusing a hog, the property of another, in an enclosure not surrounded by a lawful fence, and in the bill of (549) indictment the charge is that the abuse was done unlawfully, omitting "wilfully."

On conviction of the defendant, his Honor arrested the judgment on the ground that the word "wilfully" should have been used as necessary to a legally sufficient description of the statutory offense.

In S. v. Staton, 66 N.C. 640; S. v. Allen, 69 N.C. 23; S. v.Painter, 70 N.C. 70, and S. v. Hill, 79 N.C. 656, the indictment charged the offense, using both words, unlawfully and wilfully, according to the precedents, and no objection was made to the sufficiency of the *382 description in this respect. But in S. v. Simpson, 73 N.C. 269, there was an omission of both, and the indictment was held defective.

In the enacting clause of the statute these words are not used, but the injury forbidden is forbidden in general words, so that any killing or abuse being unlawful simply would constitute an offense, although the thing done may have occurred or been done by consent, or from carelessness or accident; and hence it was that in the case of the S. v. Simpson, supra, this Court, by construction, held that it was necessary in bills of indictment under the statute in question to use both words to limit the general words of the statute.

We concur entirely in the correctness of the decision in Simpson's case, and the reasons on which it was based, and hold that the omission of the word "wilfully" in the present case leaves the statute too little limited. The abuse charged on the defendant may have been the result of carelessness or accident, without any assent or guilty participation of the mind of the defendant therein; and if so, the case is not one designed by the act to be punished. And we hold, therefore, that in order to limit properly the general words of the statute, it is (550) necessary to allege in the bill the injury or abuse as done unlawfully and wilfully, or by some equivalent words. Besides the cases cited, see S. v. Ormond, 18 N.C. 120.

PER CURIAM. No Error.

Cited: S. v. Whitaker, 85 N.C. 569; S. v. Allison, 90 N.C. 735; S.v. Erwin, 91 N.C. 550; S. v. Howe, 100 N.C. 453; S. v. Powell, 141 N.C. 782;S. v. Leeper, 146 N.C. 668.