State v. . Pickens , 79 N.C. 652 ( 1878 )

Laws 1873-'74, ch. 31, makes it a misdemeanor to "make any disposition" of any personal property embraced in a chattel mortgage then in force with intent, etc. The bill in this case alleges that defendant did "sell and dispose of" property with intent, etc., without alleging to whom he sold it or in what manner he disposed of it, and on this ground he moves in arrest of judgment. The objection is fatal to the action. The statute is in very broad terms and probably goes beyond the meaning of the legislature, and it is proper in a criminal proceeding under such a statute that the bill of indictment should point with reasonable certainty to the alleged offence. The purpose of such particularity is to identify the particular fact of transaction on which the indictment is founded so that the accused may have the benefit of an acquittal or conviction if accused a second time. S. v. Angel,29 N.C. 27. It will be noticed that the word "sell" is not employed in the statute and may be put out of the question, except so far as it might be one of the modes of disposing of the property as is here alleged. If however that be the particular offence intended to be prosecuted, it is necessary to allege to whom the propery [property] was sold for the reasons above stated. It has been ruled that a prosecution for selling (654) spiritous [spirituous] liquors unlawfully must set forth the name of the persons to whom the liquor was sold, also the name of the slave to whom liquor was sold, or with whom a white man played cards.S. v. Stamey, 71 N.C. 202, and cases there cited.

The matter therefore stands on the words "shall make any disposition," etc. The words taken literally would be worse than a drag net, and taken with reference to the subject at hand they might mean disposition, by removing from the county, concealing, selling, or by actual consumption of such as were fit for food, etc. The defendant would have to guard too many points, not knowing from which the attack would come. As a general rule it is sufficient to describe a statutory offence in the words of the statute. It may also be described by words clearly of the same legal import, although they may not be the same words. When all the words of the statute are used in the indictment it can seldom happen that the same words ought to or can be received in a different sense in the two instruments. It is certain they are intended to mean the same, but in a few instances the Courts have established some exceptions. A statute may be so inaccurately drawn that its words extend beyond the sense and meaning of the legislature or they may fail to express the whole meaning it had. In such cases the indictment must aver such other facts and circumstances as will bring the matter within the statute, that is, it must use such words as the legislature would have used, had its precise meaning been expressed. An instance is found in S. v. Johnson, 12 N.C. 360, where it was held that besides charging in the words of the act that the prisoner being on board the vessel, concealed the slave therein, the indictment should have charged a connection between the prisoner and the vessel, as that he was a mariner belonging to her, because that was the true construction of the act. So when a statute uses a generic term it may be necessary to state in the indictment the particular species in respect to which the crime is charged, as upon a statute for killing (655) or stealing "cattle" an indictment using the word only would be insufficient; it ought to set forth the kind of cattle. Rex v. Chalkeley, R. R., 258. Upon these principles we think the indictment insufficient.

Judgment affirmed.

Cited: S. v. Hill, Post, 660; S. v. Burns, 80 N.C. 376; S. v. Farmer,104 N.C. 889; S. v. Van Doran, 109 N.C. 868; S. v. Holmes, 120 N.C. 576;S. v. Tisdale, 145 N.C. 424.