State v. Raynor , 235 N.C. 184 ( 1952 )

69 S.E.2d 155 (1952) 235 N.C. 184

STATE
v.
RAYNOR.

No. 75.

Supreme Court of North Carolina.

February 27, 1952.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Robert B. Broughton, Raleigh, for the State.

Bailey & Bailey, Plymouth, for defendant appellant.

BARNHILL, Justice.

In the first count in the warrant, defendant is charged with the commission of the offense condemned by G.S. § 14-335, a public-local statute applying to Washington and certain other counties. The charge is laid substantially in the language of the statute and is sufficient to repel a motion in arrest of judgment. State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143.

Exception to the judgment presents the single question whether the facts found and admitted are sufficient to support the judgment. It is insufficient to bring up for review the evidence upon which the findings are based. Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Rice v. Wachovia Bank & Trust Co., 232 N.C. 222, 59 S.E.2d 803; Smith v. McDowell Furniture Co., 232 N.C. 412, 61 S.E.2d 96; Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705; National Surety Corp. v. Sharpe, 223 N.C. 642, 65 S.E.2d 138. While this rule is usually invoked in civil cases, it applies also to appeals in criminal prosecutions.

The verdict of the jury is the finding of fact in this cause. That finding supports the judgment on the first count. Hence, as to the first count, no error is made to appear.

On the second count the motion in arrest of judgment presents a different question. It challenges the sufficiency of the charge of resisting arrest laid under G.S. § 14-223. "An indictment for an offense created by statute must be framed upon the statute, and this fact must distinctly appear upon the face of the indictment itself; and in order that it shall so appear, the bill must either charge the offense in the language of the act, or specifically set forth the facts constituting the same. (citing cases) ``Where the words of a statute are descriptive of the offence, the indictment should follow the language and expressly charge the described offence on the defendant, so as to bring it within all the material words of the statute. * * * Nothing can be taken by intendment. Whart.Am.Cr.Law, Sec. 364; Bishop on Stat.Crimes, Sec. 425.' State v. Liles, 78 N.C. 496." State v. Jackson, supra [218 N.C. 373, 11 S.E.2d 151]; State v. Miller, 231 N.C. 419, 57 S.E.2d 392.

The charge that defendant "did resist arrest" neither charges the offense in the language of the Act, G.S. § 14-223, nor specifically sets forth the facts constituting the offense created by the Act. It is wholly insufficient to support the verdict and judgment rendered. As to this count, the motion in arrest of judgment must be allowed.

On the first count: No error.

On the second count: Judgment arrested.