State v. . Ratliff

Nov 17, 1915

Versions:170 N.C. 707

86 S.E. 997

1915 N.C. LEXIS 468

Clark, C. J.

Tbе defendant was convicted of seduction under promise of marriage. He moved in аrrest of judgment upon tbe ground that tbe indictment, otherwise following in every respect tbe wording of this offense as defined in Eevisal, 3354, omitted the word “and” by charging the prosecutrix as “being an innocent virtuous woman,” instead of “an innocent and virtuous woman,” in the exact words of thе statute.

Eevisal, 3254, prescribes: “Every criminal proceeding by warrant, indictment, information, or impeachment shall be sufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligible, and, explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill оr proceeding sufficient matters appear to enable the court'to proceed to judgment.”

Eevisal, 3255, provides that no judgment upon any indictment for felony or misdemeanor, whether after verdict or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by confession, or otherwise, shall be stayed or revеrsed for the want of the averment of any unnecessary matter.

At the time when in the English courts 204 offenses were punished capitally tbe judges were moved by considerations of humanity to be astute in finding defects in indictments, or in process, in cases when defendants might be punished bеyond their deserts. The reason has long since ceased, and our statutes have forbidden the courts to quash or to arrest judgment where the defect alleged is not prejudiciаl.

Chief Justice Ruffin in S. v. Moses, 13 N. C., 464, referring to these curative statutes, above cited, says: “Many sages of the law had before called nice objections of this sort a disease of the law and a reрroach to the Bench, and lamented that they were bound down to strict and precisе precedents. ... "We think tbe Legislature meant to disallow the whole of them.” This case hаs been cited with approval in many cases, among them, in S. v. Smith, 63 N. C., 234, in which the Court said that these statutes have “received a very liberal construction, and their efficiency has reаched and healed numerous ‘defects in the substance as well as the form of indictments. . . . It is еvident that the courts have looked with no favor ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on technical objections, and the Legislature has been moving in the same direction. The current is all one way, sweeping off by degrees ‘informalities and refinements’ until, indeed, a plain, intelligible, and explicit charge is all that is now required.” The *709 subject is fully discussed, witb citation of many cases, in S. v. Barnes, 122 N. C., 1131, and in subsequent cases in the citations thereto in Anno. Ed.

A motion in arrеst of judgment after conviction, on the ground that the bill of indictment is defective, will not be granted unless it appears that the bill is so defective that judgment cannot be pronounced upon it. S. v. Francis, 157 N. C., 612.

“The omission of a word which is not descriptive of the offense, and which does nоt affect the plain meaning of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the indictment, is not fatal.” 22 Cye., 292; Bishop New Or. Proc. (2 Ed.), sec. 354; 10 Enc. PL and Pr., 478.

The inadvertent omission of words not affecting the substance of the charge or prejudicing the defendant is not fatal. S. v. Burke, 108 N. C., 750, and cases there cited. The omission of the word “wоund” in an indictment for murder was held not fatal, long before the adoption of the present short form of indictment for murder under Bevisal,. 3245. S. v. Rinehart, 75 N. C., 58. The omission of the word “year” in setting out the conditions of a lease was held ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to be a mere informality under the statute and not ground in arrest of judgment. S. v. Walker, 87 N. C., 541; S. v. Lane, 26 N. C., 113. In S. v. Van Doran, 109 N. C., 866, it was held that the use of “or” instead of “and” is not a defect unless it could be seen thаt it prejudiced the defendant.

The words “innocent virtuous” can have but one meaning, which is that the prosecutrix was “innocent and virtuous,” it being clearly an elliptical expressiоn. If a comma had been used it would have fully supplied the place of “and,” and bad рunctuation certainly does not vitiate an indictment any more than bad grammar.

The courts have long since passed the point where such ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍objections as this can recеive serious consideration. S. v. Washington, 13 S. C., 453; Sheldon v. Lewis, 97 Ill., 643; 22 Cyc., 291, and notes.

As the defendant had no exception on the merits or to any incident on the trial, either in the evidence or to the charge, or otherwise, it wаs possibly admissible for him to make an appeal for delay on this ground. The case, having been tried last January, should have been docketed here at the Spring Term, and this not having been done, the appeal should have been dismissed. The attention of solicitоrs and counsel was called to this matter, S. v. Trull, 169 N. C., at p. 369, in which we said that the statute regulating appeals must be complied with as to time— as in other respects.

The refusal to arrest judgment is

Affirmed.