STATEv. OWEN,5 N.C. 452(1810)
Supreme Court of North Carolina
1. In an indictment for murder, where the death is occasioned by a wound, bruise, or other assault,the strokemust beexpressly laid. But an indictment, charging "that A. B., with a certain stick, etc., in and upon the head and face of C. D., then and there feloniously, etc., did strike and beat,givingto the said C. D.then and therewith the stick aforesaid, in and upon the head and face of the said C. D., severalmortal wounds, of which said several mortal wounds the said C. D. instantly died," is good; for there is in the first clause a direct allegation of a stroke, and the participlegivingand the wordsthen andthereconnect this allegation with the mortal wounds in the second clause.
2. In an indictment charging "that A, feloniously and of his malice aforethought, assaulted B, and with a sword, etc.,then and therestruck him, etc.," the first allegation, offeloniously and of his maliceaforethought, applied to the assault, runs also to the stroke to which it is essential.Page 308
3. Where in an indictment for murder the death is charged to be occasioned bya wound, a description of the wound must be set forth in the indictment — its length, breadth, depth, etc., where they are capable of description; and the omission of such description is fatal to the indictment.
4. Where the death is charged to be occasioned bya bruise, a description of its dimensions, etc., is not necessary.
THE defendant being found guilty of the offense charged in the following bill of indictment, it was submitted to this Court whether sentence of death could be pronounced against him on the said bill.
STATE OF NORTH CAROLINA, }Superior Court of Law, WAKE COUNTY. }October Term, 1809.
The jurors for the State upon their oaths present, that John Owen, late of the county and State aforesaid, cabinet-maker, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, on the night of 21 April, 1809, with force and arms, at the city of Raleigh, in the county of Wake aforesaid, in and upon one Patrick Conway, in the peace of God and the State then and there being, feloniously, willfully, and of his malice aforethought did made an assault; and that he, the said John Owen, with a certain stick, of no value, which he, the said John Owen, in both his hands then and there had and held, the said Patrick Conway, in and (453) upon the head and face of him, the said Patrick Conway, then and there feloniously, willfully, and of his malice aforethought, did strike and beat, giving to the said Patrick Conway,then and there, with the pine stick aforesaid, in and upon the head and face of him, the said Patrick Conway, severalmortal wounds, of which said several mortal wounds the said Patrick Conway then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say that the said John Owen the said Patrick Conway, in manner and form aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the State.
OLIVER FITTS,Attorney-General.
Seawell, for the prisoner, took two exceptions to the indictment: 1. That in that part which states the mortal wounds, the stroke is only laid by implication. 2. That the indictment does not set forththe length anddepthof the mortal wounds.Potter, for theAttorney-General, for the State.Page 309
The judges were unanimous in opinion that the first (457) exception taken to the indictment could not be supported.
TAYLOR, J., delivered the opinion of the Court.
In endeavoring to form a correct opinion on the points argued in this case, it is the design not less than the duty of the Court to conform to the principles of law as they are laid down in works of authority. We disclaim all right of giving to them a rigorous construction to aid the prisoner's acquittal or of relaxing their true meaning to effect his condemnation. Like every other citizen in his situation, he is entitled to the full benefit of the constitutional provisions devised to promote the security of all; and though the most atrocious criminality may have been proved to the satisfaction of the jury, yet legal (458) condemnation ought never to be separated from legal proofs. And we cannot too strongly impress it on our minds that want of the requisite precision and certainty which may, at one time, postpone or ward off the punishment of guilt, may, at another, present itself as the last hope and only asylum of persecuted innocence. It must, however, be confessed that there is, in the ancient reasoning on this branch of the law, a degree of metaphysical and frivolous subtilty strongly characteristic of the age in which it was introduced, when at the revival of letters the first efforts of learning were laborious and rude, and scarcely a ray of common sense penetrated the clouds of pedantry. Were a system now to be established, it is probable that much of the jargon of the law would be exploded, and that no objection would prevail against an indictment, or any other instrument, which conveyed to the mind, in an intelligible form, its intended impression. But we must follow in the footsteps of those who have preceded us until the Legislature think fit to interfere; though we have no wish to extend the particularity further. On this subject the sentiments of an eminent judge have been properly read by the counsel for the State; since, although he was conspicuous for his tenderness to criminals, as well as for every manly and Christian virtue, yet he condemned this nicety as a reproach to the laws. We would also refer to the opinion of another illustrious man delivered a century afterwards, a man who had devoted a long life to the cultivation of the science he so ably dispensed.
The first exception taken to this indictment is that in that part of it which states the mortal wound the stroke is only laid by implication.
The rule laid down by the writers is that where the death is occasioned by a wound, bruise or other assault, the stroke shouldPage 310be expressly laid. In every case, however, where the objection has been heretofore taken, there is an omission of the express charge of the stroke in that part of the indictment wherein it is charged in this. InLong's case, 5 Co., the word (459)"discharged"is used. There seems to be no case where a repetition of the stroke is required after the participlegiving, if it has been directly charged in the preceding clause.
A critical examination ofLong's case, supposing it to be of good authority, which is by no means certain, will show that instead of supporting, its tendency is to repel the exception in this case. The material words of the indictment, necessary to be taken into view, inLong's case, were "that the aforesaid H. D. a certain pistol, etc., loaded with powder and a leaden bullet, etc., in and upon the said H. Long discharged, giving to the said H. Long then and there with the leaden bullet aforesaid, so as aforesaid sent forth from the said pistol by the said H. D., one mortal wound, etc." The court in giving judgment, divided the objection into two parts: (1) the clause before the words "giving him"; (2) the clause containing these words; and they resolved that the first clause was not sufficient of itself; for although H. D. discharged the pistol upon him, it may be that he was not struck by it. Then the second clause cannot make it good, for the clause of "giving," etc., depends on the said first clause, and describes the wound only to show it to be mortal, which ought to appear by the first sentence to be given; because in that case the principle determines the verb. But here it did not appear by the first clause that a stroke was given, and then "giving," etc., cannot supply it, for that is a participle depending upon the verb precedent, and the verb precedent is "discharged," and "discharged" may be without a stroke. Although the grammar and logic of that case are refined, yet the Court do not in their reasoning intimate the necessity of insertingafterthe participle "giving," the manner, thequo modoof the wound. Their opinion is that if there had been a direct allegation of a stroke in the first clause, the (460) participle "giving" would have connected it with the second clause and made the indictment good. But the decision was not approved of in after times; forLord Holtsaid that by his consent they would not be so nice again, and that there was not a case in the law like that; and its authority is admitted to be considerably shaken in a recent case.
To sustain this exception would be to establish a precedent more exceptionable than that inLong's case;and instead of promoting perspicuity and simplicity of language in indictments, would seem only to introduce tedious and perplexingPage 311tautology. Yet this is not required, even in the statement of those terms of art so peculiarly appropriated to the description of particular offenses that they cannot be supplied by any circumlocution. For where the indictment charged that A feloniously and of his malice aforethought assaulted B, and with a sword, etc.,then and therestruck him, etc., the first allegation offeloniously and of his malice aforethoughtapplied to the assault, ran also to the stroke to which it is essential. An indictment against Mary Nicholson for poisoning Elizabeth Atkinson stated that the prisoner didwillfully, feloniously and of her malice aforethought. mix poison, viz., white arsenic with flour and milk, with the intent that the same should be afterwards taken and eaten by the deceased,andthe said flour and milk so mixed with the poison as aforesaid,then and theredelivered to the deceased, etc. This was holden sufficient by all the judges, without adding the words "feloniously and of her malice aforethought" to the allegation of delivering the poison. For they considered that these words ran by the word"and"and the words"then andthere."But if the sentence had not been so connected, a different construction would have prevailed.
The indictment before us contains a direct allegation of a stroke, accompanied with the necessary terms of art, and all the sentences are connected together by the wordsandandthenand there;so that in all these respects it bears the strict form of carrying forward from one sentence to another (461) the criminal charge. Further repetition might have obscured, but could not have illustrated the charge, nor could it have brought the indictment nearer to the most approved precedents. On this point, therefore, the Court are unanimously of opinion against the prisoner.
As to the second exception, the judges were divided in opinion:Hall,LowrieandHendersonbeing of opinion that the exception was fatal to the indictment, and that sentence of death could not be pronounced against the prisoner upon the indictment in consequence thereof;TaylorandLockebeing of a contrary opinion.
HENDERSON, J.,
observed, that if the Court were now about to decide on the propriety of requiring the dimensions of any wound charged in an indictment to be mortal, to be set out, he should be clearly of opinion that it was unnecessary. But as immemorial custom, and all the authorities have determined, though not for reasons satisfactory to his mind, that wherever a death is stated to be occasioned by awound, that the length,Page 312breadth and depth of the wound should be described, where they are capable of description; and as the wordwoundsis used in this indictment, the dimensions of those wounds ought to have been stated. The judge observed that a precedent had been produced from West's Symbolcography, which did not seem to make this necessary; but this was not an authority: it was a mere precedent, upon which no judgment had passed, and the omission might have been by mistake. On examining all the books, he could find no authority where a death is charged in an indictment to be produced by a wound, that the dimensions of the wound are omitted. It is not for the Court to determine why this description is required; it is enough for them (462) to know that the law does require it; and believing both from authority and precedent that this was the law, he felt it to be his duty so to pronounce it.
LOWRIE, J.,
had but little doubt, if this indictment were submitted to the opinion of men unlearned in the law, it would be their unanimous opinion that the description of the manner in which the deceased came to his death was sufficiently set forth. But if the law has said otherwise, though the Court may not see the reason upon which the law is founded, they must be bound by it. It appears from the books that wounds capable of description must be described, that the Court may judge whether it be probable that death might have been produced by them. It appears probable that in this case Conway might have come to his death by the strokes stated to have been given; but the dimensions of the wounds being required, they cannot be dispensed with. The authorities to this point stand uncontradicted, except by West in his precedents, which, for the reasons stated by his brotherHenderson, ought not to set aside the others. All the exceptions to this rule are cases where the wound cannot be described, such as where a limb is cut off or the body run through. He thought the exception was fatal to the indictment.
HALL, J.,
said it was unnecessary for him to add much to what had been said by his brethren,HendersonandLowrie. But it might be asked what the common law of England was when it was adopted by this country, for such as it was, it must be observed. It had been very properly remarked that if the Court were not met to determine in what manner indictments of this kind should be formed, this strictness would not be required. Any one proposing that wounds should be described as laid down in the books would be considered as evincing but littlePage 313knowledge of legislation. The reason given by writers for observing this particularity is that the Court may (463) see that the wound is such as might produce death. The causes of death appeared to be laid with sufficient certainty in this indictment; but as we find from all the authorities, from Coke to East, that whenever death is stated to be produced by a wound, the dimensions of the wound must be given, it cannot now be dispensed with. It appears from West that the law was not formerly so; but this was the law when the common law of England was introduced here. All modern writers agree that the dimensions of the wound must be stated — not for any good reason, he admitted, but it was not for the Court to legislate, but to decide, as they had sworn to do, according to the law. The exceptions stated in the books prove the rule. When bruises or blows are stated, no dimensions are necessary; but where a wound is laid, it has been an invariable custom to state its dimensions.
TAYLOR, J., said he was sorry that it was not in his power to concur in the opinion delivered by his brethren. He, however, could place but little confidence in his own opinion, since it was different to-day from what it was yesterday. He then thought the indictment could not be sustained; but upon a more careful examination of authorities he now thought otherwise. He had looked in West's Book of Precedents, and though, as has been stated, precedents only show the opinions of the writers, yet all precedents which are brought into argument are of the same authority. Their weight depends much upon the age in which they were written and the character of the writers. Such as they are, they had induced him to change his opinion. (He here read from West the indictment produced by the prisoner's counsel.) Looking further into the book, he found a precedent where a person is charged with striking with a club; he is stated to have struck, wounded and maltreated the deceased, who languished and died, but there is no description of the wound. He found another precedent where a person is charged (464) with striking, wounding and maltreating the deceased, without describing the wound. From these precedents it appeared that the writer did not consider it necessary, when a wound was inflicted with a club or a stick, that it should be particularly described. These precedents had induced him to look into the English common law, by which his opinion was confirmed.
He said he had read what East says on the subject, where he states that in all cases of doubt a statement which shows thatPage 314death might ensue is sufficient; and had asked himself whether the wound given to Conway is so described in the indictment as probably to occasion death. The answer was in the affirmative.
This indictment, he observed, is in the same words with the precedents in West, except as to the word "maltreated," which is found in the latter, and which is of no consequence.
Finally, he said, he came to this conclusion that wherever the death was occasioned by a cut with a sword, dagger, or other edged instrument, it is necessary to state the dimensions of the wound; but when the death is occasioned by a club, cudgel or stick, it is sufficient to state the wound without the dimensions. He, therefore, was of opinion that the exception to the indictment could not be sustained.
LOCKE, J., agreed entirely with the opinion delivered by his brother
Taylor, for the same reasons, and from the same authorities quoted by him, and which he deemed it unnecessary to repeat.
The indictment being adjudged insufficient by a majority of the Court, the prisoner was remanded to jail to answer the same charge upon another bill of indictment to be preferred against him.
Cited: S. v. Moses,
13 N.C. 463;
S. v. Gallimon,
24 N.C. 376;
S. v.Smith,
61 N.C. 341.
(465)