{
  "id": 8688118,
  "name": "THE STATE vs. JOHN SHEPHERD",
  "name_abbreviation": "State v. Shepherd",
  "decision_date": "1847-12",
  "docket_number": "",
  "first_page": "195",
  "last_page": "200",
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    {
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      "cite": "8 Ired. 195"
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    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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      "cite": "2 Dev. 452",
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  "last_updated": "2023-07-14T20:50:05.193463+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE STATE vs. JOHN SHEPHERD."
    ],
    "opinions": [
      {
        "text": "Ruffin C. J.\nA. deed for land, duly proved and registered, passes the land by the express words of the Act of 1715 ; and it is necessarily evidence to that purpose upon every occasion on which it may be offered. For the purposes of this trial, ihdeed, it would only have been necessary to show, that the deceased professed to have a deed for the prisoner\u2019s land, and it would be immaterial whether it was genuine or not. But here it was prima facie genuine, and therefore was, at all events, properly received.\nThe Court has had some doubt of the sufficiency of the indictment, by reason of the false spelling of the day of the month. But, after consideration, we think ourselves obliged to let the sentence stand. We are inclined to the opinion that the indictment is good at common law, because, although the word \u201c tweflth,\u201d is spelt wrong, by transposing the letter f, and placing it before, instead of after l, yet it is impossible to mistake the meaning. The false spelling makes no other word, that could mislead. But at all events, the Act of 1811, Rev. Stat. Ch. 35, Sec. 12, cures the defect, if it be one. That makes the indictment sufficient if it \u201ccontain the charge expressed in a plain, intelligible, and explicit manner and forbids it \u201cto be quashed or judgment arrested for or by reason of any informality or refinement, where there appears to the Court sufficient, in the face of the indictment, to induce them to proceed to judgment.\u201d It would certainly be much more satisfactory to the Court, if the Act had specified the omissions or defects, which in the opinion of the Legislature ought not to invalidate the indictment; as has been done in England, by an Act on the same subject, that of 7 and 8 Geo. 4 C. 64. Among other things, that provides that no judgment shall be stayed or reversed for want of the averment of any matter unnecessary to be proved, nor for omitting to state the time at which the offence was committed in any case, when time is not of the essence of the offence, nor for stating the time imperfectly. At common law, it was indispensable, that the indictment should fix some certain day at which every material fact constituting a crime occurred. But, although that was the form of the indictment, yet the authorities fully show, it was only material that the time laid should be before the bill found; for, whatever time was laid, it was sufficient to prove on the trial that the offence was committed before the prosecution commenced \u2014 unless in those cases in which, the time enters into the oiien.ee, and of course, must enter into the description of it \u2014 as when an act is made criminal if done in the night, or between such and such days of the year, or the like. In respect to murder, the time is material in one respect, and but in one ; which is, that it must appear on the bill, that the day of the death, as laid, is within a year and a day from that of the wounding-. For, if it bo not so laid, the indictment does not charge murder, as the law attributes the death, not happening within a year and day, to some other cause than the Wounding. The present indictment is sufficient in that pespeqt; for, upon the supposition that there is no day of fhe month laid, it lays the time of the felonious assault and stabbing to he in August IS 16, and that Flowers \u201cthen and there instantly died1\u2019 thereof. The whole therefore occurred before the bill found, which was in the latter end of September or first of October following. The question then is, whether the Act of 1811 will support an indictment, which fails to lay a certain day as that of committing the crime, but plainly charges it to have been done in a certain month before the bill found, The Court is of opinion, that in order tq give effect to the clear purpose of the Legislature, and advance the policy of the Act, it must receive that construction. The indictment is perfectly plain, and intelligible as it is ; for wc sec clearly, that the crime of murder is charged, and that, as charged, it was perpetrated before the bill was found. We know not what defect can come within the terms \u201c informality or refinement,\u201d if the omission of the particular day of the offence committed do not; since, if it had been inserted, its only office would be to show a time before the finding of the indictment, and the proof might be of any other day, provided only, it also be before the finding of the bill. It has been heretofore held, under the Act, that the indictment need not ebarge any matter which need not be proved on the tidal. State v. Moses, 2 Dev 452. State v. Green, 7 Ired. 39. Upon the same reasoning it follows, that it is sufficient to lay any matter in the bill, in the manner in which it is necessary to prove it: for that is the substance of the thing. If the bill here had laid, the twelfth of August, 1846, as the day of the offence, proof that it was done in August, either before or after the 12th or without specifying any day, would suffice. Then the indictment is unnecessarily formal, if it go into further particulars, to which no proof need be adduced. To what good end, as the law stands upon the statute, would such an averment in the bill tend ? None, unless it be, to render the profession more studious of the precedents, and emulous of perfect pleading. But that is a good result, to the attainment of which, we are not at liberty to sacrifice the intention of the Legislature, that the execution of justice shall not be delayed, nor offenders escape punishment by \u201cexceptions, in themselves, merely formal,\u201d and technical niceties.\nWe probably do not perceive the point of the objection to the order of removal. It has occurred to us, that possibly it was founded on the language of the order being different from that of the statute in this : that the order is, \u201cthat the trial of the prosecution be removed,\u201d whereas the language of the Act is, that the Court shall order \u201ca copy of the record of said cause to be removed to some adjacent County for trial.\u201d But in substance, the Act is, that the place of trial is changed; and the other part of the enactment is merely directory as to the document on which the trial is to proceed, namely, on a transcript instead of the original record. Upon the whole order, it appears, that the prisoner and the cause were removed, for trial in the Superior Court of Law of Columbus County; and it is seen in the record from Columbus, (which is that before us,) that a transcript from Robeson Superior Court was afterwards filed in the Court of Columbus, and the prisoner tried and convicted on it. Those things certainly shew a full compliance with the law.\nThe Court therefore perceives no error in the judgment.\nPer Curiam. Ordered to be certified accordingly",
        "type": "majority",
        "author": "Ruffin C. J."
      }
    ],
    "attorneys": [
      "Attorney General, for the State.",
      "No counsel for the defendant."
    ],
    "corrections": "",
    "head_matter": "THE STATE vs. JOHN SHEPHERD.\nA deed for land duly proved and registered is evidence, under our Statute, of the transfer of the land, upon every occasion on which it may be offered ; as in this case, upon the trial of an indictment for murder.\nAn indictment for murder, which charges that the homicide was committed on the \u201ctwejlth day of August,\u201d instead of the twelfth day of August, is good, if not at common law, yet at least under our Statute, Rev. Stat. Ch. 35, Sec. 12.\nAn order of removal, directing that \u201cthe trial of the prosecution shall be removed,\u201d <$-e., is sufficient without directing further that \u201ca copy of the record of the said cause be removed,\u201d &c.\nIn an indictment for murder, if the time stated be anterior to the indictment, it is material and only material in one respect, and that is, that the day of the death, as laid, is within a year and a day of that of the wounding. '\nIf that appears from the stating of the month, the day of the month is immaterial \u2014 according, at least, to the proper construction of our Act of Assembly, Rev. Stat. Ch. 35, Sec. 12.\nThe cases of the State v. Moses, 2 Dev. 452. and State v. Green, 7 Ire. 39, cited and approved.\nAppeal from the Superior Court of Law of Columbus County, at the Fall Term, 1847, his Honor Judge Caldwell presiding.\nThe prisoner was convicted upon an indictment for the murder of James Flowers, and moved for a venire de novo, and then in arrest of judgment; and after a disal-lowance of the motions, and sentence of death, he appealed.\nOn the trial, evidence was given on the part of the State, that the deceased was found, late in the evening, lying by himself on the ground, near the prisoner\u2019s house, and badly wounded by stabs in the breast; and he said he was dying and that the prisoner had killed him, and desired that the prisoner should be called. The witness called the prisoner ; and after having at first refused he came to the deceased, and on being asked, why he had served the deceased so, he replied, \u201c that he meant to do it,\u201d and then showed a knife, with which, he said, he had inflicted the wounds. On the part of the State, evidence was further given, that the prisoner had antecedently said, that the deceased bad bought his land at sheriff\u2019s sale, and that the day after he should get a deed for it, he would kill him, unless he gave it up. And then the solicitor for the State offered in evidence a sheriff\u2019s deed to the deceased for the land, duly proved and registered, and offered to prove that it had been delivered by the deceased to the register, to be registered the da3>- before the homicide. The counsel for the prisoner objected to the deed being received in evidence, unless its execution was proved on the trial. But the Court received the evidence.\nThe indictment was found in Robeson Superior Court, at a term beginning on the 1st Monday after the 4th Monday of September, 1846 ; and runs thus : \u2018\u201cThe jurors, &c. present, that John Shepherd, late, &c. on the tweflth day of August in the year of our Lord one thousand eight hundred and forty-six,\u201d &c., made the assault on the deceased, \u201cthen and there being,\u201d and, \u201cthen and there\u201d with a knife gave a mortal wound of &c. of which &c. \u201cthe said James Flowers then and there instantly died.\u201d\nOn the affidavit of the prisoner, that he could not obtain justice in Robeson, the Court, on his motion, ordered, \u201cthat the trial of this prosecution be removed to the County of Columbus, and that the trial be had on Tuesday of the next term of said Court, and that the sheriff, &c. have the prisoner, &c. on Monday of the said Superior Court of said County of Columbus,\u201d &c.\nAttorney General, for the State.\nNo counsel for the defendant."
  },
  "file_name": "0195-01",
  "first_page_order": 203,
  "last_page_order": 208
}