263 N.C. 788 | N.C. | 1965
When the appeal was first before us (262 N.C. 472), the record proper did not disclose the proceedings, if any, in the Recorder’s Court of Martin County. The record now before us dispels any doubt as to the jurisdiction of the Superior Court of Martin County to proceed by bill of indictment.
In the trial below, defendant was not represented by counsel. On appeal, defendant, through counsel, contends Indictment No. 3091 is fatally defective and, in substance if not in words, moves in this Court for arrest of judgment. The contention has merit.
G.S. 14-134, in pertinent part, provides: “If any person after being forbidden to do so, shall go or enter upon the lands of another, without a license therefor, he shall be guilty of a misdemeanor . . .” It seems clear it was intended that Indictment No. 3091 charge a violation of this statutory offense.
The words, “without a license therefor,” do not appear in Indictment No. 3091. It was held in S. v. Bullard, 72 N.C. 445, that an indictment is fatally defective if it does not charge this constituent element of said statutory offense.
It appears that the evidence, when considered in the light most favorable to the State, was sufficient, upon legal principles stated in S. v. Clyburn, 247 N.C. 455, 101 S.E. 2d 295, to support a conviction of violation of G.S. 14-134. Even so, a valid bill of indictment is an essential of jurisdiction. S. v. Helms, 247 N.C. 740, 745, 102 S.E. 2d 241. While S. v. Clyburn, supra, and S. v. Cooke, 246 N.C. 518, 98 S.E. 2d 885, were decided on other grounds, it is noteworthy that the warrants on which these criminal prosecutions were based charged in substance that the defendant’s alleged entry or refusal to leave was without a license therefor.
For the reasons indicated, the judgment is arrested. In legal effect, this vacates the verdict and judgment. However, the State, if so advised, may proceed against defendant upon a sufficient bill of indictment. S. v. Strickland, 243 N.C. 100, 89 S.E. 2d 781.
Judgment arrested.