State v. . Brady

99 S.E. 7, 177 N.C. 587, 1919 N.C. LEXIS 175

• Court: Supreme Court of North Carolina
• Decided: April 23, 1919
• Status: Published

Opinion

Allen, J.'

The defendant concedes that the first part of the indict ment, charging him with prescribing, is good, and he does not question the correctness of the principle that when there are two or more counts in an indictment, some good and others defective, that a general verdict of guilty will be upheld (S. v. Klingman, 172 N. C., 950), but he insists that there is no evidence that he prescribed, medicine, etc., and as the procuring and advising are not properly charged, that the judgment ought to be arrested.

The' difficulty with this position is that “the judgment in a criminal prosecution can only be arrested for defects in the bill of indictment when it shows substantial defects on its face. The court cannot look to extrinsic evidences to ascertain the defects.” S. v. Craige, 89 N. C., 479.

The same question was presented in S. v. Hawkins, 155 N. C., 466, and the Court said, “If there had been a failure of proof, the defendant should have taken advantage of it by a prayer for instruction and not by a motion in arrest of judgment.”

A prayer for instruction would not, however, have availed the defendant as we find in the record evidence that the defendant prescribed whiskey at one time and rat’s bone and tablets at other times for the purpose of causing an abortion.

No error.