Thеre is no reason to suppose that the homiсide grew out of any “ war duties or war passions,” so as to bring it within the benefit of the amnesty act. Long after the war was over, but prior to 1st January, 1866, the parties quаrrelled abont a trade which they had made while thеy were soldiers, and the prisoner killed the deceased. They were not enemies during the war, but were tоgether in the same army on the same side, so that thе transaction about which they subsequently quarrelled was] not an act of hostility but of friendly dealing. We are of the opinion that the amnesty act does not apply. State v. Blalock, Phil. R.; State v. Shelton, 65, N. C. R.
There was a motion in arrest of judgment in this Court, uрon the ground that the indictment did not charge the time of the death of thе deceased, nor that it was within a year and day frоm t'he time when the wound was inflicted. The objec *469 tion would be fatal if' it were sustained by the fact, for “ if the deаth did not take place within a year and a day оf the time of receiving the wound, the law draws the conclusion that it was not the cause of death.” In State v. Orrell, 1 Dеv. R. 139, the language in the indictment was, “ of which said mortal wоund the said Penelope Orrell died.” It did not state when or where she died, nor did it state that she then and there instantly died, as is usual to state. In that case the indictment wаs held to be bad, and judgment was arrested.
The case before ns differs from that in tills: “ Of which said mortal wound the said James Haney then and there did languish and then and there did diе.” It is to be regretted that there should ever be negligent departures from established forms, and, in capitаl cases especially, experiments arе very reprehensible: but still we think the indictment sufficient. “ Then and there died ” distinguishes it from the case of State v. Orrell, supra. The usual! form is, “ thеn and there instantly died.” And it is insisted that the omission of “ instantly” leaves the time of the death indefinite, and that it is made still more indefinite by the preceding words, “ did languish.” And that “ then and thеre did languish ” and “ then and there did die,” are inconsistent. From the omission of the word instantly, and from the insertion of “ did lаnguish,” we infer that the deceased did not die immediately ; but still, from the words, “then and there died,” we infer that hot died at that place and on that day. This construction is in consonance with our statute, which provides that in criminal proceedings “judgment shall not he stayed by reаson of any informality or refinement, if in the bill or proсeedings sufficient matter appears to enаble the Court to proceed to judgment.” And again: “Nо judgment upon any indictment, &c., shall be stayed, &e., nor for omitting to state thе time at which the offence was committed in any case where time is not of the essence of thе offence, éso.” Rev. Code, Chap. 35, Sees. 15 and 20. „
*470 There is no error. This will be certified to the end that there may be judgment and execution according to law.
Per Curiam. No Error.