State v. Gibbs

66 S.E.2d 883 (1951) 234 N.C. 259

STATE
v.
GIBBS.

No. 145.

Supreme Court of North Carolina.

October 10, 1951.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State, appellant.

W. E. Anglin and Garrett D. Bailey, Burnsville, for defendant-appellee.

JOHNSON, Justice.

The purpose of Chapter 539 of Public-Local Laws of 1933, as shown by its title, is to protect hunting and fishing and timber reservations in Yancey County, and the Act provides: "That it shall be unlawful for any person to enter upon any hunting and fishing or timber reservation in Yancey County, without a written permission from the owner * * *."

The properties protected by the Act are "reservations." The word reservation as applied to a description of land has a definite, specific meaning. It is defined in Webster as "a tract of public land reserved for some special use, as for schools, for forests, for the use of the Indians, etc." According to Black's Law Dictionary, 2d. Ed., p. 1026, "In public land laws of the United States, a reservation is a tract of land, more or less considerable in extent, which is by public authority withdrawn from sale or settlement, and appropriated to specific public uses; such as parks, military posts, Indian lands, etc."

The essential elements of the crime created by the Public-Local Act under which the bill of indictment was drawn are (1) entry (2) upon a hunting and fishing or timber reservation in Yancey County (3) without a written permission from the owner.

The bill of indictment does not charge that the defendant entered upon any hunting and fishing or timber reservation. This omission renders the bill fatally defective. State v. Miller, 231 N.C. 419, 57 S.E.2d 392; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143; State v. Ballangee, 191 N.C. 700, 132 S.E. 795.

Decision here would seem to be controlled by the rule stated in State v. Morgan, supra, 226 N.C. 414, at page 415, 38 S.E.2d at page 167: "It is a universal rule that no indictment, whether at common law or under a statute, can be good if it does not accurately and clearly allege all the constituent elements of the offense charged."

Also in point is the following observation of Adams, J., in State v. Ballangee, supra, 191 N.C. 700, at pages 701 and 702, 132 S.E. at page 795: "The breach of a statutory offense must be so laid in the indictment as to bring the case within the description given in the statute and inform the accused of the elements of the offense. * * * Merely charging in general terms a breach of the statute and referring to it in the indictment is not sufficient."

"The bill need not be in the exact language of the statute, but it must contain averments of all the essential elements of the crime created by the act." State v. Miller, supra, 231 N.C. 419, at page 420, 57 S.E.2d at page 393.

In State v. Jackson, supra, 218 N.C. 373, 11 S.E.2d 149, 151, Justice Barnhill succinctly states the formula this way: "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. * * * `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. * * *'"

In the light of the foregoing authorities, it is manifest that the court below properly quashed the bill of indictment. The decisions cited by the State seem to be distinguishable.

We have not overlooked G.S. § 15-153, which provides that an indictment shall not be quashed by reason of a mere "informality or refinement." This statute, however, does not dispense with the requirement that the essential elements of an offense must be charged, and many decisions of this Court have so held. See State v. Tarlton, 208 N.C. 734, 182 S.E. 481, and cases cited; State v. Cole, 202 N.C. 592, 163 S.E. 594, 598, and cases cited and analyzed.

Nor have we overlooked G.S. § 15-143, which provides that a bill of particulars may be ordered in the discretion of the court. The function of a bill of particulars under the statute is to provide "further information not required to be set out" in the bill of indictment, but never to supply matter required to be charged as an essential ingredient of the offense. State v. Cole, supra; State v. Wilson, 218 N.C. 769, 12 S.E.2d 654.

For the reasons given, the judgment below is affirmed.