{
  "id": 2083720,
  "name": "STATE v. BALIS HENDERSON",
  "name_abbreviation": "State v. Henderson",
  "decision_date": "1873-01",
  "docket_number": "",
  "first_page": "348",
  "last_page": "351",
  "citations": [
    {
      "type": "official",
      "cite": "68 N.C. 348"
    }
  ],
  "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": "1 Dev. 513",
      "category": "reporters:state",
      "reporter": "Dev.",
      "case_ids": [
        8697547
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/12/0513-01"
      ]
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    {
      "cite": "7 Ired. 27",
      "category": "reporters:state",
      "reporter": "Ired.",
      "case_ids": [
        8683865
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/29/0027-01"
      ]
    }
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  "last_updated": "2023-07-14T18:26:25.985368+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. BALIS HENDERSON."
    ],
    "opinions": [
      {
        "text": "Settle, J.\nIn the bill of indictment against the prisoner for murder, the assault is charged to have been made upon \u201c one N. S. Jarrett.\u201d In all the subsequent parts of the bill the deceased is described as \u201c the said Nimrod S. Jarrett.\u201d After verdict, the prisoner\u2019s counsel moved in arrest of judgment for the variance in the name of the person assaulted and the person murdered.\nIn State v. Angel, 7 Ired. 27, the Court say, the purpose offsetting forth the name of the person who is- the subject on which an offence is committed, is to identify the particular-fact or transaction, on which the indictment is founded, so that the accused may have the benefit of one acquittal or conviction if accused a second time. The name is generally required as the best mode of describing the person but he may be described otherwise, as by his calling or the like, if he be identified thereby, as the individual and distinguished from all others. And if the name be unknown,, the fact may be stated as an excuse for omitting it altogether. .In that case there was n.o variance in the name of' the deceased apparent on the record; but the proof -was, that \u201c Robert B. Roberts,\u201d the deceased, was as well known by the appellations, \u201c Robert Burton,\u201d and \u201c Burt,\u201d as by \u2022 the name set forth in the bill of indictment, and the Court say the jury might therefore be well warranted in treating these, not as different names, but as different modes of calling the same name, for there could be no difficulty imposed on the prisoner in pleading former acquittal or conviction ; for by proper averments that the Robert B. Roberts mentioned in the indictment is one and the same person as the \u201c Robert Burton Roberts,\u201d or \u201c Burt Roberts,\u201d mentioned in the other, he could readily show the truth of the case.. So in the case before us, the prisoner if indicted a second time, could plead former acquittal or conviction, and by proper averments, shew the truth of the matter, and thus avail himself of all the purposes of setting forth the name of the injured person. In State v. Upton, 1 Dev. 513, it is. said the misspelling of the name is immaterial, since it appears throughout the indictment, to be the same person.. The Army murdered, is \u201c the said Anne,\u201d upon whom the felonious assault was made. In our case, the N. S. Jarrett assaulted is referred to throughout the bill as \u201c the said Nimrod S. Jarrett.\u201d We are well aware that the English '. authorities have not gone to this extent.\nBut all doubts that may arise upon conflicting authorities are met and removed by the enactment in our Revised Code, ch. 35, sec. 14, which declares that no judgment shall be stayed \u201c by reason of any informaility or refinement, if in the bill or proceeding sufficient matter appears to enable the Court to proceed to judgment.\u201d\nIt would appear to be a nice refinement to arrest a judgment for an informality in setting forth the name of the person injured, since it is a common practice with most \u2022persons to write their Christian names sometimes in full and ! sometimes by the initials only.\nThis disposes of the only question raised by the prisoner on his trial in the Superior Court, but we have carefully examined the law to ascertain if the Court which tried him was properly and legally constituted.\nThis Court has recognized, since the adoption of our new \u2022 Constitution, a Court of Oyer and Terminer as a Superior Court. State v. Baker, 63 N. C. Rep. 276. And there is nothing in the Code of Civil Procedure which repeals the \u00a1acts under which Courts of Oyer and Terminer are held. In Baker\u2019s case the record set forth the authority under which the Judge held the Court, but that was said to be unnecessary, because prima facie, at least, when a Judge of a Superior Court holds a Court, it is to be taken that he is . authorized to do so, and that it is in all things regular. In this case the Governor issued a commission to Judge Henry, ...authorizing him to hold a Court of Oyer and Terminer in \u2022 the County of Macon. He proceeded to hold the Court in Macon, when the prisoner, on affidavit, asked for the removal of his case, and it was removed to the County of Jackson. Judge Henry then proceeded to the County of Jackson, after proper notice to the county authorities, and held the Court, at which the prisoner was convicted. This action, though novel, is fully authorized by the Act of the General Assembly, ratified the 23d day of December, 1864. This Act requires, in express terms, that the transcript of the record shall set out and contain a copy of the Judge\u2019s commission. In the case before us this was done, and the record contains no error of which the prisoner can take advantage.\nLet this opinion be certified, (fee.\nPer Curiam.\nJudgment affirmed.",
        "type": "majority",
        "author": "Settle, J. Per Curiam."
      }
    ],
    "attorneys": [
      "No counsel for prisoner in this Court.",
      "\u25a0Attorney General Hargrove, for the State."
    ],
    "corrections": "",
    "head_matter": "STATE v. BALIS HENDERSON.\n\u2022\u25a0.In an indictment for murder, the assault is charged to have been made on one \u201c N. S. Jarrett,\u201d and in subsequent parts of the indictment he is described as \u201c Nimrod S. Jarrett \u201d: Held, to be no variance.\n-'The Supreme Court has recognized, since the adoption of the new Constitution, a Court of Oyer and Terminer, as a Superior Court. And there is nothing in the Code of Civil Procedure which repeals the acts under which Courts of 'Oyer and Terminer are held.\n. Indictment, charging the defendant with the murder of \u25a0one Nimrod S. Jarrett, tried before Henry, J., at .a Court of Oyer and Terminer, under special commission, third Monday of December, 1872, in Jackson county, to which county it had been regularly removed from the county of Macon.\nThe jury found \u201cthe defendant, the prisoner at the bar, guilty of the felony and murder of which he stands charged in the bill of indictment \u201d ; whereupon, his, the prisoner\u2019s, counsel moved to arrest the judgment, upon the ground that the assault is alleged in the bill of indictment to have been committed on one N. S. Jarrett, and that Nimrod S. \u25a0Jarrett is the person charged to have been murdered. This motion, his Honor overruled. The case states, that after -sentence, the prisoner moved for a new trial, basing the motion upon his affidavit, in which it is stated, \u201cthat since the \u2019trial he has discovered evidence that would have been material and important to him,\u201d &c., \u201c and that his counsel did not advise him of its materiality.\u201d His Honor likewise 'Overruled this motion, and the prisoner appealed.\nNo counsel for prisoner in this Court.\n\u25a0Attorney General Hargrove, for the State."
  },
  "file_name": "0348-01",
  "first_page_order": 358,
  "last_page_order": 361
}