State v. . Arnold
11 S.E. 990
N.C.
1890
Check Treatment
Clark, J.:

Thе books of Forms and Precedents usually insert the word “wilfully,” and sometimes the word “unlaw *862 fully,” before the wоrds “ feloniously and with malice afore: thought” in indictments for murder. While there are numerous decisions that the words “feloniously,” “with 'malice aforethought” and “murder” are essential to the validity of suсh indictments, and that their place cannot be supplied by the use of any other, it is not so as to the words “wilfully” and “unlawfully.” 1 Hale P. C., 466; Heydon’s case, 4 Co., 41a; 2 Bish. Cr. Pr., 546. Indeed, it has been expressly held that thе latter words are not necessarjq the reason assigned being that, unlike the other words abоve quoted, “wilfully” and “unlawfully” are not “sacramental words.” State v. Harris, 27 La. Ann., 572. The real reason, however, probably, as suggested by Mr. Bishop (2 Crim. Prac., 543, 547), is not that there is any magic quality in one set of words and not in othеrs, nor because they have no synonyms (as has been sometimes held), but because by the Statutе 1 Edward VI (enacted 1547) benefit of clergy was taken away from those convicted of murder сommitted “feloniously and of malice aforethought” (omitting the additional ‍‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌​‌​‌​‌​​‌‌​‌​‌​‌‌​‌​​‌​‍word “wilfully,” which had been usеd in the prior statute of 23 Henry VIII), and since, and by virtue of that act, murder has been a capital felony. Being an act increasing the punishment, the Courts have always restricted the capital felony to those homicides which were charged, in the exact language of the stаtute, as committed “ feloniously and of malice aforethought.” “Wilfully” is mere sur-plusage.

Aside from this, thе words “wilfully and unlawfully” are tautological, for murder, which is done “feloniously and with malice aforethought,” must necessarily be committed “ wilfully and unlawfully,” and is “ wilful murder of malice prepense,” under The Code, § 1057. The defendant, upon this bill of indictment, well'knew he was charged with the “wilful” slaying of the deceased, and has been put to no disadvantage.

*863 . Chapter 58, Apts 1887, does not require, as defendant’s motion premises, any set words to be used. Thе act is a substantial copy of 24 and 25 Victoria, ch. 100, and its object is correctly set out in the caption, “An act to simplify indictments.” It creates no new offence. It declares an indictment containing certain words “sufficient,” but it does not make those words essential, nor by any rеasonable construction ‍‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌​‌​‌​‌​​‌‌​‌​‌​‌‌​‌​​‌​‍can it be held to make technical and “sacramentаl” words which were not theretofore necessary in indictments for murder. To so construe the аct would make essential, likewise, the words “ with force and arms,” which have not been requisite in indictments for any offence whatever for three centuries and a half, having been abolishеd by 37 Henry VIII. State v. Harris, 106 N. C., 682. It would also probably make essential the usual concluding words of an indictment which have been held immaterial in State v. Kirkman, 104 N. C., 911, and other similar matters which are customary and formal parts of аn indictment, but which by legislation and numerous decisions are not requisite to its validity. . The Code, § 1183, and decisions thereunder. We cannot think that such is the purport or the intent of the act. The motion in arrest of judgmеnt was properly overruled. Indeed, the indictment in this case contains some surplusage and allegations not necessary to be made, but the essential matters are properly charged. As it may be desirable to settle what ‍‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌​‌​‌​‌​​‌‌​‌​‌​‌‌​‌​​‌​‍are the indispensable requisites of such indictmеnts, it is proper to say that under the decisions and statutes the following is full and sufficient in the body of аn indictment for murder: “The jurors for the State on their oaths present that A. B., in the county of E., did felo-niously, and of malice aforethought, kill and murder C. D.”

And it is sufficient in an indictment for manslaughter to follow the sаme form, omitting the words “and with malice aforethought” and substituting “slay” in the stead of the *864 word “murder.” These forms contain, in the words of the statute, “ every averment necessary to be proved.”

Such, in substаnce, are the forms recognized as valid in England for many years past, under the above cited statute of Victoria 24 and 25, ‍‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌​‌​‌​‌​​‌‌​‌​‌​‌‌​‌​​‌​‍from which our act of 1887 is taken. Time not being of the essencе of these crimes, “the omission to charge any date” is immaterial (The Code, §§1189 and 1183), though the allegatiоn of time can do no harm. It is only when time is of the essence of the offence that it was'ever required to prove the date as charged, and hence, it is only in those cases thаt the omission to charge it could deprive the defendant of any benefit or information. State v. Peters, post.

While every indictment properly should have a caption, it is no part of the indictment, and its omission is no ground' for arresting judgment, as has been often held. State v. Wasden, N. C., Term R, 163 (596); State v. Brickell, 1 Hawks, 354; State v. Lane, 4 Ired., 113; State v. Dula, Phil., 437. Nor would a misrecital of the county ‍‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌​‌​‌​‌​​‌‌​‌​‌​‌‌​‌​​‌​‍in thе caption be ground of arrest of judgment. State v. Sprinkle, 65 N. C., 463. It is regular and orderly for the bill to be signed by the Solicitor, but such signing is not essential to its validity. State v. Mace, 86 N. C., 668; State v. Cox, 6 Ired., 440.

The power of the Legislature to prescribe the form of indictment for murder is upheld in State v. Moore, 104 N. C., 743, and State v. Brown, 106 N. C., 645, which are cited and approved.

Per Curiam. No error.