State v. . Walker

87 N.C. 541 | N.C. | 1882

The only exceptions taken by the defendant were to the form of the indictment, and were made the grounds of his motion in arrest of judgment.

The first ground is without any foundation. A judgment is never arrested except for some substantial defect appearing upon the face of the indictment.

The name of Gash is not mentioned in the bill. There is nothing in it to show that any one by the name of Gash was the owner in fee, or had any interest whatever in the land. If there was anything in the objection, it should have been taken before the jury. The bill states with sufficient certainty that Ashworth was the landlord, and that the lien given by the statute was in him.

The second ground, that the omission of the word "year" after the word "one," is fatally defective, is equally untenable. The omission does not vitiate the indictment. It is one of the informalities cured by the act of 1811, Bat. Rev., ch. 33, sec. 60. In State v. Rinehart, 75 N.C. 58, which was an indictment for murder, the bill read, "giving, etc., to the said Joseph Turner one mortal wound of the depth of six inches, and of the breadth of one inch, of which said mortal (omitting the word, wound) he the said Joseph Turner then and there instantly died," it was held the omission of the word "wound" was cured by the act of 1811, and was no ground for the arrest of the judgment, and in State v. Lane, 26 N.C. 113, the averment was, "on the 3rd day of August, 1843," without saying "the year of our Lord," or even using the word, "year," it was held that although this defect would have been fatal at common law, it was cured by the act of 1811.

The remaining ground, that the bill does not allege that the (544) defendant failed to give the five days' notice of his intended removal of the crop, cannot be sustained. The bill charges that the defendant removed the crop "without first having given the said Ashworth, or any agent of his notice, of any intended removal." This averment negatives the five days' notice required by the statute as conclusively as if it had followed the very words of the statute. If the defendant gave no notice whatever, of course he did not give five days' notice.

There is no error. Let this be certified to the superior court of Transsylvania [Transylvania] County that further proceedings may be had according to law.

No error. Affirmed.

Cited: S. v. Craige, 89 N.C. 479; S. v. Powell, 94 N.C. 923; S. v.Smith, 106 N.C. 655; S. v. Van Doran, 109 N.C. 867; S. v. Ratliff,170 N.C. 709; S. v. Efird, 186 N.C. 484; S. v. Cochran, 230 N.C. 525.