78 N.C. 458 | N.C. | 1878
The indictment charges "that the defendant pretended that he was the sole and only owner of said mule, and that there was no lien or other ownership existing thereon." There is certainly no crime in pretending that the mule was his, because it may all be true. But it is also charged that he "designedly, unlawfully, and falsely pretended" it. It is not specified in what the falsehood consisted. Was he not the "sole owner"? Was there some other "ownership" or partnership? Was there some "lien" on it? Or in what else did the falsehood consist?
The precedents are to the effect that the indictment must not only charge that he falsely pretended that the mule was his, but it must contain the negative averment that it was not his. "Whereas in truth and in fact the said Joseph Pickett was not then the owner of said mule," etc., is the form in Archbold's Criminal Pleading. And it is held that the indictment is insufficient without it. Rex v. Perrett, 2 M. and W., 379. There is error. This will be certified, to the end that the judgment may be arrested.
PER CURIAM. Reversed.
Cited: S. v. Farmer,
(460)
