Opinion · Nclaw North Carolina
STATE v. GREEN, 29 N.C. 39 (1846)
STATE v. WILLIAM A. GREEN., 29 N.C. 39 (N.C. 1846)
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STATE v. GREEN, 29 N.C. 39 (1846) STATE v. WILLIAM A. GREEN.Supreme Court of North Carolina (December Term, 1846.) In an indictment under the statute, Rev. Stat., ch. 34, sec. 48, for maiming by biting off an ear, it is not necessary to state whether it was the right or left ear.
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STATEv. GREEN,29 N.C. 39(1846)
STATE v. WILLIAM A. GREEN.
Supreme Court of North Carolina
In an indictment under the statute, Rev. Stat., ch. 34, sec. 48, for maiming by biting off an ear, it is not necessary to state whether it was the right or left ear.
APPEAL from GRANVILLE Fall Term, 1846;Battle, J.
Indictment for an assault and biting off "the ear" of W. H. on purpose and unlawfully, but without "malice aforethought," and it concludescontra formam statuti. After conviction, the prisoners (40) counsel objected that sentence could not be passed under the statute, Rev. Stat., ch. 34, sec. 48, because the indictment is uncertain and insufficient, inasmuch as it does not state which ear was bitten off. The presiding judge was of that opinion, and refused to give judgment of imprisonment as prescribed in the act, though willing to pass sentence as upon an indictment for an assault at common law; and the solicitor for the State appealed.
Attorney-General for the State.Badger and Gilliam for defendant.
RUFFIN, C. J.
After a resolution inLong's case, 5 Rep., 120, that certainty to a certain intent in general is required in indictments, and no more,LordCokestates a further resolution, that charging a stroke on the head, or on the face, or upon the right hand, or left arm, is sufficient, though not specifying on what part of the head or face the stroke was given, or whether it was on the back or palm of the right or left hand, or on what part of the arm; but thatsuper manum, orsuper brachium, orsuper latus, without "the right" or "the left," is not sufficient, because in such cases the part of a man in which the wound is is not certain. The reason of the distinction is obvious enough. There is but one head or face, and therefore it sufficeth to say"the head"or"theface," being that degree of certainty which is requisite in an indictment. In like manner there is but one "right hand," and the law does notPage 38require a certainty that shall be carried to every particular of the part or parts of that member injured. But when the injury is to a member of the body of which there are two, it is but a certainty to a certain intent in general to designate that one of the two to which the (41) injury was done. It is certain, therefore, that at common law, in charging the mortal wound on the hand, arm, side, or leg, in an indictment for murder, it was indispensable to state it to be the right or the left arm, hand, side, or leg. But it is equally clear that this was requisite as a matter of form in the indictment, from respect to precedents, and to no other purpose. It was not regarded as one of those substantial averments to which the proof must correspond in manner and form; forLord Halestates "that an indictment for murder, besides laying the act to have been donefelonice, and ascertaining the time, must have these certainties and requisites: (1) Declare with what it was done, namely,cum gladia;though killing with another weapon maintains the indictment. (2) Must show in what hand the sword was held; and for want of that an indictment had been quashed. (3) It ought to show in what part of the body the deceased was wounded, and therefore, if it be on the hand or arm, without saying whether right or left, it is not good. (4) The length and depth of the wound is to be shown." Yet he adds, "But, though the manner and place of the hurt and its nature be requisite, as to the formality of the indictment, yet if, upon evidence, it appears to be another kind of wound in another place, if the party died of it, it is sufficient to maintain the indictment." Thus we see that so great respect was paid to the form of indictments, as settled by precedents, that an indictment was actually quashed for not averring which hand held the weapon with which the wound was given; but, nevertheless, the evidence need not show that it was with or on the right or left hand, though so laid in the indictment. Archb. Cr. Pl., 315. It was upon that ground, namely, that the manner and form of laying the cause of the death and describing the wound was not of the substance of the indictment, that the Court held, inS. v. Moses,13 N.C. 452, that under the act of 1811 an indictment was good which did not state the dimensions of the wound. It was deemed unnecessary (42) to charge any matter which need not be proved on the trial; and that was laid down as the rule of construction of the statute. It was considered at the time that at common law it was indispensable to state the dimensions of the wound, according to the ancient authorities, andOwen's casein this State; and it was supposed that the law so continued in England up to that time. We were not then aware of the St. 7 Geo. IV., ch. 64, whereby several most material alterations were made in the law in that country as to the form of indictments and the proceedings thereon, and the mode of taking advantage of certainPage 39defects in them; among which is a provision that no judgment upon any indictment, whether after verdict, or outlawry, confession, or otherwise, shall be stayed or reversed "for want of the averment of any matter unnecessary to be proved." It was thus, by an express enactment, that the same provision was adopted there which this Court thought was one of the necessary effects of the general terms of our enactment, except that by the English statute the defects are waived by pleading over, and, therefore, are still open to a demurrer, whereas by ours the indictment, notwithstanding the defects, is sufficient to all intents and purposes, and cannot be quashed nor the judgment arrested. We find it stated accordingly by a respectable writer on pleading in criminal cases, after mentioning the rule as to laying in what part of the body the wound was given, that it would be ridiculous to attempt to account for or justify that particularity; and he gives his reason for the remark in these words: "For the same strictness is not required as to the evidence necessary to support it; as if, for instance, the wound be stated to be on the left side, and proved to be on the right, the variance is immaterial; and,for this reason, the objection can now only be taken by demurrer," by force of the act 7 Geo. IV., ch. 64; Archbold Cr. Pl., 316. For the same reason it cannot be taken here in any way, according to the act of 1811, Rev. Stat., ch. 35, sec. 12. It may be mentioned by (43) the way, that the very point decided inS. v. Moseswas in 1825 so adjudged in England inRex v. Mosely, R. and M., 97, in which it was held by ten judges that, as it was never necessary to prove the wound as laid, it is not at common law necessary to state in the indictment the length, breadth, or depth of it.
When it is thus seen that an indictment for a capital felony, which charges a mortal wound in the right ear, is supported by evidence of the wound in the left ear, it would seem to follow necessarily that an indictment for the misdemeanor of biting off the right ear is, in like manner, sustained by proof that the left ear was bitten off. The offense by the statute is biting off "an ear," and as there is not difference in the crime, whether it be one or the other, the substance of the offense charged is established by proof that it was either ear. AsLord Halesays, it is fit to be laid as near the truth as may be, yet if upon the evidence it appear to be a wound in another place, it is sufficient. There must doubtless be a charge of biting off an ear, because that member is the specific object of the enactment; but it is not necessary the indictment should state whether it be the right or the left ear, to enable the accused to defend himself, or to inform the court of the act creating the offense or of the punishment prescribed, nor to give the party the full benefit of the plea of former acquittal or conviction. If not good in this general form upon the principles of the common law applicable to the mode ofPage 40charging offenses against the person of another, the Court holds that it is clearly good under the act of 1811, because thecorpus delicti, as constituted by the statute, namely, "on purpose and unlawfully, but without malice aforethought, biting off an ear of another person," is described in it in a plain, intelligible, and explicit manner. Therefore the refusal to pass judgment on the indictment under the statute was erroneous.
Further proceedings may be had on the verdict accordingly.
(44) PER CURIAM. Error.Cited: S. v. Shepherd,30 N.C. 199.