State v. . Sam , 13 N.C. 567 ( 1830 )

FROM ROWAN. "The jurors, etc., present, that Sam, a person of color, etc., on, etc., with force and arms in, etc., in and upon the body of one L. S., a white female, in the peace, etc., violently and feloniously did make an assault, with intent to commit a rape upon the body of the said L. S., then and there did beat, etc., against the form of the statute.

After a conviction, the counsel for the prisoner filed an affidavit, and upon the facts disclosed therein moved for a new trial, upon the ground of surprise, which was refused by STRANGE, J.

A motion in arrest of judgment was then made, because the indictment did not charge the offense to have been committed since the passage of the act of 1823. This motion was overruled, and, judgment of death being pronounced, the prisoner appealed. When the time of doing an act constitutes its guilt, the indictment must expressly aver it, and so describe the time as to bring the case within the words of the statute, if the offense be one created by statute. As where it is made unlawful to do certain things between such a day and such another day of the year. The time not only enters into the offense, but also into the description of it in the (568) act; and therefore ought also to enter into the description of the indictment.

Going on that reason, there are cases which require the same particularity in indictments framed on statutes, which make acts done after a specified day criminal, or increase the punishment. But this was always confined to recent statutes. And a respectable writer, Mr. Chitty (Cr. Law, 234), supposes that, though usual, it is now in no case necessary. I should, indeed, think that in such a case the conclusion, contra formanstatuti, did sufficiently aver that the fact was done after the day specified in the act itself, and that the verdict so affirmed. For, except in cases of description, the time stated need not be proved; and unless the evidence showed the commission of the offense was subsequent to the day limited, the party would be entitled to an acquittal. The verdict of guilty, therefore, affirms not only that the fact has been done, but also that it was done, so as to be criminal within the statute; that is to say, after its passage, or the day specified in it. And that such an averment does not enter into the description of the offense is clear from this: If it did, it must appear alike in all indictments drawn on any statute, ancient or modern thus specifying a day. But all the books state that it need not in the case of an ancient one.

But clearly, the rule, never went farther than to embrace cases arising on statutes which do in themselves designate a particular day after their passage, after which the act prohibited shall be an offense. It never did extend to statutes making the act criminal immediately after the passage of the statute, or the general period at which all statute go into operation. The time does not make a part of the offense, as described in the statute, and is material only so far as it shows the fact was perpetrated after the statute was in force, which is necessarily (569) inferred from the verdict, and the averment that it was against the statute. Of this last kind, is the act of Assembly on which this indictment is drawn.

We do not give any opinion upon the motion for a new trial, because it is founded altogether upon surmise, and of that the Court below is exclusively the judge. It is a matter of discretion, with which this Court cannot interfere.

PER CURIAM. No Error.

Cited: S. v. Wise, 66 N.C. 121.