State v. Pate
28 S.E. 354
N.C.
1897
Check Treatment
Montgomery, J.:

The defendant was not represented in this Court by counsel and on that account we have given the whole record a most thorough and painstaking examination. The indictment contains every averment under the requirements of Chapter 58 of the Acts of 1887 to make it a complete bill of indictment for murder. Indeed, less, might have been charged in the indictment and yet the same held good and sufficient under the decision of this Court in State v. Arnold, 107 N. C., 861. In the body of thе indictment the name of the person accused, the defendant, is set out, as was ‍​​​​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌​‌​​‍the County of his residence, the date of the homicide, the averment “with'force and arms,” the *665 County in which, tlie offence was allegеd to have been committed and that the accused person feloniously, wilfully, and of his malice aforethought did kill and murder the person alleged to have been killed, against the form of the Statute in such case made and provided and against the peace and dignity of the State.” The Court was, therefore, right in its refusal tо quash the bill on the motion of the defendant.

After a portion of the testimony had been received to thе effect that the deceased was shot and wounded by the defendant on the 5th of December, 1896, and that he died a few days thereafter — 70 hours according to the testimony of the attending physician, ‍​​​​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌​‌​​‍— the counsel of the defendant “moved the Court to discharge him as to this bill of indictment.” We will treat this motion as one made for а new trial because of variance between allegation and proof. The ground of the motion wаs that it was shown bj>- the evidence that the deceased lived some days after he had been wounded, while thе bill of indictment. alleged that he was killed outright on the 5th of December and that, therefore, the defendant might bе indicted again for the same offence if he should be acquitted on the present trial. The answer to thаt is that the day on which the indictment alleged the homicide to have been committed is immaterial as to thе point raised by the defendant. The State had the right to prove and it was its duty to prove the homicide, if such could have been done, on any day up to the finding of the bill; and all the evidence in the case bearing оn the time of the wounding and the time of the death was that he died before the finding of the bill, and within less than a year and a day, to-wit, within three days from the day on which ‍​​​​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌​‌​​‍the wound was inflicted. It was held in State v. Orrell, 12 N. C., 139 (before our Code, Section 1189; Section 20, Chapter *666 35, Rev. Code) upon motion in arrest of judgment, that the failure in the indictment to allege that the death of the deceased occurred within a year and a day after the wound was inflicted was fatally defective. In that case the indictment charged that the- mortal wound was given on a particular day, but failed to state when the death occurred. The reasoning of the Court was that they could not conclude that the actual date of the mortal wound was the day alleged in the bill, as the State could show that it was inflicted on any day before the bill was found. It might have been proved to havе been given on any day previous to the finding of the bill, for such proof would have supported the chargе that it was given on the da}- mentioned in the indictment. The Court therefore could not derive any aid from the time сharged in the indictment as to when the wound was given, and, by a comparison of that time with the time of the finding of the bill, сonclude that death followed within a year and a day from the date of the wound.

But even before the Statute of 1887, Chapter 58, we think the indictment in the case before thé Court ‍​​​​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌​‌​​‍would have been good so far as the оbjections raised by the defendant are concerned. In the case of State v. Baker, 46 N. C., 267, the indictment charged that the blow was inflicted on a certain mentioned day and that the deceased instantly died; whereas the fact was established by the evidence that the deceased did not die on the day the wound was inflicted but lived nearly thrеe weeks thereafter. The Court held that the variance was not material because the evidenсe sliowed •that death occurred within the year and day from the ‍​​​​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌‌​‌​​‌‌‌​​‌​​‌​‌​​‍infliction of the wound. The motion to dischargе the defendant, treated as a motion for a new trial for variance between allegation and proof, was properly refused by tile Court. Such of the special instructions prayed for by the defendant as should have been given to the jury wore, in *667 substance, embraced in his Honor’s charge; and the Court instructed the jury fully аnd carefully as to the law bearing upon murder in the first and second degrees under our Statute and also as to that concerning manslaughter, applied those principles to the facts developed in the trial, and gave the whole matter a fair and careful investigation.

The Judge who drafts this opinion of the Court fresh frоm the perusal of the record in the case, is saddened to have to write that the judgment of the Court below must be affirmed. The youth who was murdered was only fifteen years old and his slayer only about eighteen, addicted tо the drink habit and drinking at the time he committed the murder. The boy criminal is by judgment of human law condemned to give his life as the penalty of his crime, but the Great Spirit alone can know how much of that sin is chargeable to him and how much to those who have influenced his life and how much to those who, wherever they live, might have used agencies to make that life one of a higher order. We find no error in the rulings of the Court below and the judgment must be affirmed.

Affirmed.