{
  "id": 11276922,
  "name": "THE STATE v. JOHN SMITH",
  "name_abbreviation": "State v. Smith",
  "decision_date": "1869-01",
  "docket_number": "",
  "first_page": "234",
  "last_page": "238",
  "citations": [
    {
      "type": "official",
      "cite": "63 N.C. 234"
    }
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  "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": "2 Dev. 452",
      "category": "reporters:state",
      "reporter": "Dev.",
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        11277382
      ],
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    {
      "cite": "2 Dev. 452",
      "category": "reporters:state",
      "reporter": "Dev.",
      "case_ids": [
        11277382
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      "case_paths": [
        "/nc/13/0452-01"
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  "last_updated": "2023-07-14T15:51:48.011339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE STATE v. JOHN SMITH."
    ],
    "opinions": [
      {
        "text": "Settle, J.\nThe defendant moves to arrest the judgment',, for that the indictment concludes against the form of the \u201c statue, \u201d when it should have been, statute. What is the effect of substituting the word \u201cstatue\u201dfor statute,in this connection ?\nFormerly, it was necessary to set out at length the statute,, or statutes, if more than one, upon which an indictment was-founded, in order that the party might be informed of the law, against which it was alleged that he had offended. This particularity being attended with much inconvenience, and rendering the proceedings very cumbersome, the conclusion \u201ccontra formam statuti\u201d or \u201c contra formam statutorum \u201d if the indictment was founded upon more than one statute, was received as a sufficient compliance with the law, instead of the long-recital. But as many prosecutions still failed, because of the-conclusion, \u201c contra formam statuti,\u201d when it should have been \u201c statutorum,\u201d and vice versa, the Courts permitted the device-of concluding \u201c contra formam statut., and would construe the-abbreviation to be statuti or statutorum, in order to fit the-case.\nIt is interesting to trace the changes which have taken place from time to time, in regard to the substance, as well as to the form of indictments. When first introduced, the utmost, particularity was required in alleging, according to the truth of the matter, all the facts and circumstances attending the offence. And as the proof had to sustain the allegations in every particular, it was very difficult to obtain conviction, \u2014 so-much so indeed, that the Courts were compelled, by considerations of public interest, to relax, by construction, the stringency of the rule, which required strict proof of everything, which it was necessary to allege. They would hold, for instance, that an indictment charging that A came to his death, fiom the effects of a mortal wound, upon the right side-of the head, was sustained by proof that the mortal wound was in and upon the left side of the body. It is somewhat remarkable, that while the Courts, by construction, dispensed, with so much of the proof necessary to sustain an indictment,, they at the same time strictly adhered to old precedents, in. regard to the allegations of the bill. They would not hesitate to arrest judgment, for a failure to set out a fact, which if set \u2022out, they held, it was not necessary to prove according to the truth of the matter.\nIt is evident that the Courts have looked with no favor \u25a0upon technical objections; and the legislature has been moving in the same direction. The current is all one way, .sweeping off, by degrees, \u201cinformalities and refinements,\u201d until, indeed, a plain, intelligible and explicit statement of the charge against the defendant is all that is now required, in any criminal proceeding.\nThe Act of 1811, Rev. Code, ch. 85, sec. 14, has received the almost universal approbation of the bench and bar. It needs no higher endorsement than that of the late Chief Justice RuffiN. He says, in State v. Moses, 2 Dev. 452, \u201c this law was certainly designed to uphold the execution of public Justice, by freeing the Courts from, those fetters of form, technicality and refinement, which do not concern the substance of the charge, and the proof to support it. \u201d\nThis act has received a very liberal construction, and its efficacy has reached and healed numerous defects in the substance, as well as in the form of indictment. It is unnecessary to express an opinion, as to whether the Act of 1811, alone, \"would not cure the defect we are now considering, for the Legislature has by a subsequent act removed all doubt upon the subject.\nIt seems that there is no particular magic in the conclusion against the form of the \u201c statute, \u201d for other words may be used which might serve the same purpose.\nIn State v. Tribatt, 10 Ire. 151, which was an indictment for retailing spirituous liquors without a license, the conclusion was against the form of the \u201c Act of Assembly, \u201d instead of the \u201c statute.\u201d Attention is called to the fact, that the title of our Legislature is \u201c The General Assembly,\u201d and that there is no suchbodyas \u201cThe Assembly;\u201d and yet it was held that the Act of 1811 cured the defect, and that there appeared sufficient upon the face of the indictment, to induce the Court to proceed to judgment.\nIt was repeatedly ruled, however, that it did not embrace the case where an indictment concluded against the form of the \u201c statute, \u201d when it should have been \u201c statutes, \u201d and vice versa. State v. Sandy, 3 Ire. 570, and State v. Abernathy, Bus. 428.\nIn both of these cases, attention is called to the statute of 7 Geo. 4, ch. 64, sec. 20; and it is intimated that a similar reform would be beneficial in this State.\nShortly after Abernathy\u2019s case, we find the Legislature-enacting that, \u201c no judgment upon any indictment for felony or misdemeanor, whether alter verdict, or by confession, or otherwise, shall be stayed or reversed for the want of the averment of any matter unnecessary to be proved, nor for the omission of the words \u201c with force and arms, \u201d nor for the insertion of the words \u201c.as appears by the record,\u201d or of the words \u201c against the form of the statutes \u201d instead of the words \u201c against the form of the statute, \u201d or vice versa; nor for omitting to state the times at which the offence was committed, in any case where time is not of the essence of the offence, nor for, stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened; nor for the want of a proper and perfect venue, when the Court shall appear by the indictment to have had jurisdiction of the offence. \u201d\nThe Legislature, by this Act, evidently intended to cure the defects therein named, and all others of a similar character.\nIt did not mean simply to abolish the distinction between the singular and plural numbers, and to say fhat it must be either the word \u201c statute \u201d or \u201c statutes, \u201d and that no other word or words could supply their places; but it meant to say that the Courts should disregard all objections of that character, and proceed to judgment. There is no such word as \u201c statue \u201d in connection with legal proceedings, and the defendant could not have been misled by its use. He must have known that it was intended for the word statute, and he was .as fully informed of tbe nature of the charges against him, and \u2022of the law upon which it was founded, as we would have been, had the letter \u201c t \u201d not been omitted in the word statute.\nGiving to the Acts of 1811 and 1854 the same liberal interpretation, which they have always received, we have no hesitation in declaring that they fully meet the case before us, and \u25a0cure the defect, upon which it is sought to arrest the judgment. There is no error. This will be certified, &c.\nPer Curiam. No error.",
        "type": "majority",
        "author": "Settle, J."
      }
    ],
    "attorneys": [
      "\u2022 No counsel for the appellant.",
      "Attorney General, contra."
    ],
    "corrections": "",
    "head_matter": "THE STATE v. JOHN SMITH.\nThat an indictment concludes against the form of the Statute, instead of Statute, is no ground for an arrest of judgment.\n(8. v. Moses 2 Dev. 452; S. v. Tribatt 10 Ire. 151; S. v. Sandy 3 Ire. 570 and 8. v. Abernathy Bus. 428, cited and approved.)\nINDICTMENT for retailing spirituous liquors, tried before Thomas, J., at Fall Term 1868 of the Superior Court of' Jones.\nThe only question made before this Court was upon the refusal of his Honor below to arrest the judgment, although the indictment concluded against the form of the \u201cStatue\u201d' instead of Statute.\n\u2022 No counsel for the appellant.\nAttorney General, contra."
  },
  "file_name": "0234-01",
  "first_page_order": 250,
  "last_page_order": 254
}