31 S.E. 847 | N.C. | 1898
The indictment charges that the defendant "did unlawfully, willfully, and feloniously set fire to and burn a certain gin house, *512
belonging to J. L. Bennett and in the possession of one G. W. Bailey." Verdict of guilty and defendant moved in arrest of judgment for that The Code, sec. 985 (6), has been amended (Laws 1885, ch. 66), by striking out the words "unlawfully and maliciously" and inserting in lieu thereof "wantonly and willfully," and that the words used in the indictment are not synonymous with those required by the amended statute. The objection would be well taken if this indictment was sustainable only under subsection 6 of section 985. S. v. Morgan,
The defendant, however, insists that subsection 2, section 985, does not create an offense because it merely prescribes that "every person (747) convicted of" the acts therein described "shall be imprisoned in the penitentiary does not less than five nor more than ten years," and does not expressly add that such person shall be guilty of a felony. The objection is without force. Convictions under subsection 2 were expressly sustained in the two cases last cited, and its validity has also been directly recognized in S. v. England,
"During the argument there was a recess of the court at noon, and defendant was taken to the jail. Upon reassembling of the court, one of defendant's counsel began his argument to the jury. Defendant had not been brought into court, but the court did not notice his absence until defendant's counsel had proceeded with his argument about a minute, when the solicitor suggested that the defendant was in custody and not in court. Thereupon the defendant's counsel stated he would waive defendant's presence, and proceeded with his argument. About ten minutes latter the sheriff produced the defendant in court." No exception was taken to this at the time, and it was too late to make this exception for the first time in the appellant's case on appeal, which is admissible only as to exceptions to the charge. Taylor v. Plummer,
The other exceptions in the case do not require discussion.
No error.
Cited: S. v. Rippy,