{
  "id": 8683212,
  "name": "STATE v. WILEY TOMLINSON and others",
  "name_abbreviation": "State v. Tomlinson",
  "decision_date": "1877-06",
  "docket_number": "",
  "first_page": "528",
  "last_page": "529",
  "citations": [
    {
      "type": "official",
      "cite": "77 N.C. 528"
    }
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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."
  },
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    {
      "cite": "74 N. C. 402",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8682906
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    {
      "cite": "2 Dev. 222",
      "category": "reporters:state",
      "reporter": "Dev.",
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        11276660
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    {
      "cite": "2 Dev. 222",
      "category": "reporters:state",
      "reporter": "Dev.",
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        11276660
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  "last_updated": "2023-07-14T20:46:21.915598+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. WILEY TOMLINSON and others."
    ],
    "opinions": [
      {
        "text": "Eaiecloth, J.\nThe bill of indictment cannot be held to \u25a0embrace the offence denounced in Bat. Rev. ch. 32, \u00a7110, which provides against obstructions to the modes of furnishing water for the operation of mills, &c., because by its express terms the obstruction is located \u201cin the mill race below the mill.\u201d It was no doubt drawn in view of \u00a7 154 of said chapter, but it is fatally defective under that section, inasmuch as it fails to aver that said obstructions were not put in the race \u201cfor the purpose of utilizing water as a motive power,\u201d or words of the same import. \u201cIf there be any exception contained in the same clause of the Act which creates the offence, the indictment must show negatively that the defendant, or the subject of the indictment does not come within the exception.\u201d Archbold Cr. Pl. 25 ; State v. Norman, 2 Dev. 222.\nLet it be certified that there was no error in the order-quashing the indictment to the end that the defendants may be discharged.\nPeh Cueiam. Judgment affirmed",
        "type": "majority",
        "author": "Eaiecloth, J."
      }
    ],
    "attorneys": [
      "Attorney General, for the State.",
      "Mr. Hugh F. Murray, for the defendants, submitted :"
    ],
    "corrections": "",
    "head_matter": "STATE v. WILEY TOMLINSON and others.\nInclietm\u00e9nt \u2014 Navig\u00e1ble Streams \u2014 Obstructions.\n1. Upon an indictment charging that the defendants did \u201cunlawfully and' wilfully fell trees and, place obstructions in the mill race below the mill of E, the same being a natural passage for water but not navigable for rafts, &c., whereby the natural flow of water through said race was retarded,. &c.Held,\n(1.) That as the obstructions were placed below the mill, the offence charged was not a violation of Bat. Kev. ch. 32, \u00a7 110 ;\n(S.) That as the indictment does not contain an averment that the obstructions were not put in the race \u201cfor the purpose of utilizing the water as a motive power,\u201d it is fatally defective under Bat. Kev. ch. 32, \u00a7 154.\n\u25a02. An indictment should negative an exception contained in the same clause of the Act creating the offence.\n(State v. Norman, 2 Dev. 222, cited and approved.)\nIndictment for a Misdemeanor tried at Spring Term, 1877, \u25a0of Wilson Superior Court, before Moore, J.\nThe defendants, Wiley, Erank, John and Buck Tomlinson were indicted as follows :\n\u201cThe jurors, &c., present, that (defendants) did * * unlawfully and wilfully fell trees and place obstructions in the mill race below the mill of one C. E. Einch, the same being & natural passage for water, but not navigable for flats or rafts, whereby the natural flow of water through said mill race was retarded, contrary, &e.\u201d Upon motion of defendants\u2019 counsel His Honor quashed the bill of indictment, and Moore, Solicitor for the State, appealed.\nAttorney General, for the State.\nMr. Hugh F. Murray, for the defendants, submitted :\nIt is not indictable to obstruct an unnavigable natural water course. State v. Pool, 74 N. C. 402. The statute, Bat. Rev. cli. 32, \u00a7 110, refers to artificial water eourses above the \u25a0dam, while this indictment is for obstructing a natural water course below the dam. Penal statutes must be strictly construed."
  },
  "file_name": "0528-01",
  "first_page_order": 542,
  "last_page_order": 543
}