#### STATE vs. BENJAMIN STATON.

1. An indictment nnder the Act of 1868-’69, ch. 253, concerning the killing, &c., of stock “in any inclosnre not surronnded by a lawful fence,” which simply charges the injury &c., to have been committed on stock in “the field” of one A. B., is not certain to that extent required in such pleading, and after a con. viction on such indictment, a motion in arrest of judgment wiil be sustained.

2. Such a defect is not an informality or refinement within the purview of the 14th sec. of 35th chap, of the Rev. Code, but is a failure to express the charge against the defendant in a plain, intelligible and explicit manner.

The case of Stater. Stanton, 1 Ired., 424, cited and approved.

This was a motion in arrest of judgment made after conviction at Fall Term 1871, of the Superior Court of TransyL-vania county, His Honor, Judge Cloud presiding.

The indictment is in these words, viz : “ The jurors for the State upon their oath present that Benjamin Staton, late of the county of Transylvania, on the 10th day of October, 1868, with force and arms at and in the county iforesaid unlawfully *641and wilfully did abuse, weary* and injure tbe stock, to-wit: the hogs of one Isaac Heath, then and there being in the field of the said Benjamin Staton, the same not being surrounded by a lawful fence, to the great damage of the said 'Isaac Heath, contrary to the form of the Statute in such eases made and provided and against the peace and dignity of the State.”

GUDGER, Sou.

His Honor sustained the motion, and arrested judgment; from this ruling, Mr. Solicitor Henby appealed to this . Court.

Attorney General for the State.

David Coleman for the defendant.

*

Probably a mistake for “worry.'’

Dick, J.

The Statute, (Acts 1868 — ’69, chap. 253,) declares:

“ That it any person shall kill or abuse any horse, mule, cattle hog, sheep or neat cattle, the property oí another in an inclosure, not surrounded by a lawful fence, such person shall be., deemed guilty of a misdemeanor, <fce.

The indictment charges that the defendant Benjamin Staton “unlawfully and wilfully did abuse and injure the stock, viz : the hogs oi one Isaac Heath, then and there being in the field ¡of the said Benjamin Staton, the same not being surrounded by a lawful fence.” After a verdict of guilty, the defendant moved to arrest the judgment on the ground that the offence created by the Statute was not charged with sufficient^certain-fcy in the bill of indictment.

I In setting out a Statutory offence in an indictment, it is in ben eral sufficient to describe it in the words of the Statute, if lvex-y fact necessary to constitute the offence is declared in. *642fctie Statute with certainty and precision 2 Hawk , ch. 25, sec. 3. Arch. Or. Pl., 51.

As criminal statutes are usually drawn with deliberation and skill, it is the safest course to pursue strictly the words of the statute, as it precludes all questions about the meaning of the words used, and the Courts have always shown a great tendency in criminal proceedings to adhere to the strict letter of the law. It is not always absolutely essential to follow precisely the words of the statute ; equivalent words, in an indictment, will be held sufficient, but, they must state all the circumstances which constitute the definition of the offence in the statute, so as to bring the defendant clearly within it. Commonwealth v. Bean, 2 Leading Cr., C. Heard 172, and notes. Bish. C P., sec.. 291, 269. State v. Stanton, 1 Ired. 424.

There have been hundreds of decisions in the Courts of England and of this country upon this question, and no rule has been laid down which will meet every case that may arise on this subject.

Mr. Archbold states a rule which will generally be found applicable. “When a word not in the statute, is substituted in the indictment for one that is, and, the word thus substituted is equivalent to the word used in the statute, or, is of more extensive signification than it and includes it, the indictment will be sufficient-” Arch. C. P. 52.

In our case the words used in the statute in describing the offence, is “ inclosure,” the word substituted in the indictment is “ field,” and we have to consider whether the words come within the above rule.

Inclosure is a general term which includes several specific things: as, a farm, public square, cemetery, fortification, etc. The modified meaning of the word as used in the statute, is ascertained by reference to a statute in pari materia (Rev. Co. eh. 48,) to be “inclosed grounds,” used for the purpose of habitations and husbandry, and separated from woodland or common by a fence or wall of some kind. Such an inclosure may *643be a yard, graden, orchard, field, etc. The word field has not as extensive a signification as inelosure, and therefore, the terms are not equivalent and the less cannot in elude the greater.

The word field has no technical signification in law, (1 Chit Pr. 160,) and we see by reference to Webster’s Dictionary that it has thirteen different meanings.

The farmer speaks of a field, as part of his farm separately enclosed, but, the word is often used in common parlance to dis_ tinguish cleared land from woodland. Thus we often say old Afield,” which generally signifies a piece of land uninclosed.

• Thus it appears, that the indictment founded on the statute, instead of the words of the statute, uses other words which may-have a diffei’ent signification. The charge in the indictment may be strictly true, and yet the defendant, be not guilty of the offence, contemplated and defined in tEe"siStute.

The defect in the indictment is not cured by the statute (Rev. Code ch. 36, sec. 14,) as it is not an “ informality and refinement,” but it is a failure to “ express the charge against the the defendant, in a plain intelligible, and explicit manner.”

The ruling of His Honor was correct and the judgment is-.affirmed. Let this be certified.

Pur Curiam. Judgment Affirmed.