State v. Miller

57 S.E.2d 392 (1950) 231 N.C. 419

STATE
v.
MILLER et al.

No. 722.

Supreme Court of North Carolina.

February 3, 1950.

Attorney General Harry M. McMullan and Assistant Attorney General T. W. Bruton for the State.

Bowie & Bowie, West Jefferson, for defendant appellants.

BARNHILL, Justice.

The defendants, on their appeal here, rely solely upon their exception to the ruling of the court below denying their motion in arrest of judgment. The motion was well advised and must be sustained.

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 of the constituent elements of the offense sought to be charged. State v. Morgan, 226 N.C. 414, 38 S.E.2d 166.

"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." State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 151, 131 A.L.R. 143, and cases cited.

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. "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." State v. Ballangee, 191 N.C. 700, 132 S.E. 795. "Nothing can be taken by intendment." State v. Jackson, supra State v. Liles, 78 N.C. 496.

When a specific intent is a constituent element of the crime, it must be alleged in the indictment. The omission of such allegation is fatal. State v. Morgan, supra.

A comparison of the alleged offense charged in the bill of indictment with the crime created by the act under which it was drawn compels the conclusion that the bill is fatally defective. The offense created by the statute is (1) the placing of dynamite etc. in any of the waters of this State (2) for the purpose of taking, killing, or injuring fish. Neither the act condemned nor the intent specified is alleged. This defect goes to the substance and not to the form of the indictment. State v. Cole, 202 N.C. 592, 163 S.E. 594; G.S. § 15-153.

As the bill of indictment under which defendants were tried and convicted is fatally defective, it will not serve to bar further prosecution if the solicitor is so advised. State v. Morgan, supra.

The judgment herein must be arrested. It is so ordered.

Reversed.