{ "id": 8652734, "name": "THE STATE v. W. F. KIRKMAN et al.", "name_abbreviation": "State v. Kirkman", "decision_date": "1889-09", "docket_number": "", "first_page": "911", "last_page": "914", "citations": [ { "type": "official", "cite": "104 N.C. 911" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "81 N. C., 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695177 ], "opinion_index": -1, "case_paths": [ "/nc/81/0534-01" ] }, { "cite": "69 N. C., 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2085480 ], "opinion_index": 0, "case_paths": [ "/nc/69/0040-01" ] }, { "cite": "68 N. C., 234", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "2 Dev., 452", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11277382 ], "opinion_index": 0, "case_paths": [ "/nc/13/0452-01" ] }, { "cite": "10 Ired., 151", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 1972536 ], "opinion_index": 0, "case_paths": [ "/nc/32/0151-01" ] }, { "cite": "81 N. C., 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695049 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/81/0531-01" ] }, { "cite": "81 N. C., 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695177 ], "opinion_index": 0, "case_paths": [ "/nc/81/0534-01" ] } ], "analysis": { "cardinality": 385, "char_count": 6101, "ocr_confidence": 0.538, "pagerank": { "raw": 1.7223611223116113e-07, "percentile": 0.7041304338592713 }, "sha256": "ed3bca0ef1eb3261971127c81814231a6a6d448d10b4810e0f96d5bbc1d6a3a7", "simhash": "1:07973a72c7802889", "word_count": 1046 }, "last_updated": "2023-07-14T17:01:43.175763+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE STATE v. W. F. KIRKMAN et al." ], "opinions": [ { "text": "Clark, J.:\nThe conclusion, \u201c against the peace and dignity of the King,\u201d was held in England to be necessary in all indictments. No reason was assigned for.it except that it had been customary. It furnished no light to the defendant, and its employment was not required by any statute. As every criminal offence is, in its nature, \u2018'against the peace,\u201d its use is tautology, and, doubtless, originated in the rhetorical flourish of some ancient and forgotten pleader.\nIn our Constitution of 1776 it was provided that indictments should conclude, \u201cagainst the peace and dignity of the State,\u201d but this requirement is in the same clause which regulates the form in which commissions, grants and writs shall run, and was evidently intended merely to place in the organic law a provision that, in all legal proceedings and documents thereafter, the word \u201c State \u201d should be substituted for \u201cKing\u201d in all places where the latter had,till then,been customarily used. The Constitution of 1868 omits this requirement.\nEver since 1784, \u201c it has been the evident tendency,\u201d as is said by Ashe, J., in State v. Parker, 81 N. C., 531, \u201cof our Courts, as well as our law-makers, to strip criminal actions of the many refinements and useless technicalities with which they have been fettered by the common law, the adherence to which often resulted in the obstruction of justice, and the escape of malefactors from merited punishment.\u201d The first step in that direction was the Act of 1784, applicable to indictments and criminal proceedings in the County Courts, and which, by the Act of 1811, was extended to criminal proceedings in the Superior Courts as well. This act has now become \u00a71183 of The Code, and provides: \u201c Every criminal proceeding by warrant, indictment, infoi\u2019-mation or impeachment, shall be sufficient in form for all intents and purposes, if it express the charge against the defendant in a plain, intelligent and explicit manner, and the same shall not be quashed, nor the judgment thereon staj^ed, by reason of any informality for refinement, if, in the bill of proceeding, sufficient matter appears to enable the Court to proceed to judgment.\u201d Then followed the provision of the Revised Code of 1854, now \u00a71189 of the present Code, that \u201cno judgment upon any indictment shall be stayed or reversed for the want of the averment of any matter unnecessary to be proved.\u201d\nThe omission in the present Constitution of the requirement that indictments shall conclude \u201c against the peace and dignity of the State,\u201d was not made without a purpose, and is. in accord with the manifest tendency to simplify criminal, as well as civil, proceedings, and to try all causes upon their merits, stripped of useless refinements and technicalities, which never aid, and often hinder, the due administration of justice. This tendency is shown in many decisions of this Court, which hold to be sufficient indictments concluding \u201cagainst the Act'of Assembly,\u201d \u201cagainst the statute,\u201d \u201c against the form of. the statute,\u201d &c. State v. Tribatt, 10 Ired., 151; State v. Moses, 2 Dev., 452; State v. Smith, 68 N. C., 234; State v. Evans, 69 N. C., 40; State v. Davis, 8U N C., 384.\nIn State v. Parker, 81 N. C., 531, above cited, the Court held sufficient an indictment concluding \u201c against the peace and dignity,\u201d omitting the words \u201c of the State,\u201d though it would seem that the omitted words were precisely the material ones required by the constitutional provision of 1776. At this term, we have held also, in State v. Sykes, that a conclusion, \u201ccontrary to law,\u201d is sufficient.\nIn State v. Moses, above cited, the elder Rui?pin, than whom a greater lawyer never sat on this bench, refers to the fact that \u201cmany sages of the law had called nice objections of this sort a disease of the law and a reproach to the bench.\u201d He expresses the opinion that by the act of 1811 (now The Code, \u00a7 1183), \u201c the Legislature meant to disalloiv the whole of them aud only require the substance, that is, a direct averment of those facts and circumstances which constitute the crime to be set forth.\u201d\nWe are not unaware that a contrary opinion to ours has been held in State v. Joyner, 81 N. C., 534. But in view of the broad and clear expressions of the statute we cannot hold that case as authority, and deem the reasoning used, and the conclusion reached in the case above cited of State v. Parker, in the same volume, more consonant with the expressed will of the legislative power.\nIndeed, it may be noted that even in England, where the words \u201c against the peace of the King\u201d are held material, it is considered that their omission is not ground for a motion in arrest of judgment, but the objection must be taken at an earlier stage. Archbold\u2019s Criminal Pleading, p. 58. Our statute makes the bill \u201csufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligible and explicit manner,\u201d and if that is done forbids that the bill should either be \u201c quashed or judgment arrested \u201d by reason of any informality or refinement.\nThe judgment in arrest must be set aside, and the case remanded to the Superior Court that it may proceed to pass judgment in conformity with this opinion.\nPer curiam. Error.", "type": "majority", "author": "Clark, J.:" } ], "attorneys": [ "The Attorney General, for the State.", "Mr. D. M. Parches, for the defendants." ], "corrections": "", "head_matter": "THE STATE v. W. F. KIRKMAN et al.\nIndictment \u2014 \u201c Against the Peace and Dignity of the State.\u201d\n1. It is not now essential that an indictment shall conclude, \u201c against the peace and dignity of the State.\u201d The ancient rule requiring such averment is not sanctioned either by the Constitution or statutes of this State. The Code, \u00a7\u00a7 1183, 1189.\n2. State v. Joyner, 81 N. C., 534, so far as it conflicts with the opinion in this case, is overruled.\nIndictment for Incest, tried before Connor, J., at November Term, 1889, of Iredell Superior Court.\nThe defendants were found guilty by a jury, and, on motion of their counsel, the judgment was arrested, on the ground that the usual concluding words, \u201c against the peace and dignity of the State,\u201d were omitted from the indictment.\nThe State appealed.\nThe Attorney General, for the State.\nMr. D. M. Parches, for the defendants." }, "file_name": "0911-01", "first_page_order": 927, "last_page_order": 930 }