28 S.E. 255 | N.C. | 1897
The indictment was as follows: "The jurors for the State, upon their oaths, present that Lockett Daniel, late of the County of Granville, on 5 April, 1897, with force and arms, at and in the county aforesaid, a certain building, to-wit, a stable, then and there situate, the property (575) of Elizabeth F. Satterwhite and others, wantonly, willfully and feloniously did set fire to and burn, against the form of the statute in such case made and provided, and against the peace and dignity of the State." The jury found the defendant guilty, and he moved in arrest of judgment, on the ground that the indictment contained no criminal charge against him. The motion was denied. It was ordered and adjudged that defendant be confined in the penitentiary for seven years, from which judgment defendant appealed.
The transcript on appeal was defective. It did not show the organization of the court, nor that it was held at the courthouse, nor at the time and place specified by law, nor that a grand jury was drawn, sworn and charged, and that they presented the indictment which is set forth in the transcript. The attention of the clerks of the Superior Courts is again called to the legal requirements in this respect, as stated inS. v. Butts,
The prisoner is indicted for setting fire to a stable in Granville County, then and there situate, etc., "the property of Elizabeth F. Satterwhite and others." He moved in arrest of judgment, because it was not *427
charged, instead, that the stable was "in possession of" some person named. The offense is set out in Code, sec. 985 (6), which has been amended by Laws 1885, ch. 42, and it is not made a requisite thereby that the building set fire to shall be either "the property of" or "in possession of" any one. The constituent element of the offense is "the willful and wanton" setting fire to any building of the kind therein named. The allegation of its being "the property of" A. is for purposes of identification only (10 Am. Eng. Enc. Law, 595), to give the prisoner sufficient notice to prepare his defense and enable him to plead former conviction or former acquittal to a second indictment for the same offense. An allegation that the stable was "in possession of" A. would have been sufficient, or so might other apt words sufficient for identification of the building charged to have been set fire to. In statutory offenses for burning, the property may be described as "belonging to," "the property of," "owned by," "in possession of," or simply "of," a person named. 1 McClain Cr. Law, sec. 529. Hence, when the building is described in the indictment as "the property of" A., proof of possession is held sufficient evidence of ownership, for the "title of the property is not in issue."S. v. Jaynes,
The provision in the statute in question that it shall be an offense to set fire, willfully and wantonly (as amended in 1885) to any of the buildings mentioned, "whether such buildings shall then be in possession *428 of the offender or in possession of any other person," is no part of the description of the offense, but has reference to evidential matters which shall not defeat the conviction of the offender, making it immaterial whether he or some one else was in possession. Even in those cases in which it is necessary to charge the property or possession, it can be laid in "A. and another," or in "A. and others," as the case may be. (578) Code, sec. 1188. For a stronger reason, this is admissible when, as here, allegation neither of possession nor ownership is required, and such allegation is only for certainty and identification. Indeed, objection on this ground was not insisted on. The motion in arrest of judgment was properly overruled.
Affirmed.
Cited: Norton v. McDevit,