State v. . Edwards

90 N.C. 710

Opinion

Asiie, J.

The defendant is indicted for burning an uninhabited house, which by statute is made a misdemeanor (Bat. Rev.,' ch. 32, §93), and the defendant moved to arrest judgment upon the ground that the offence, being only a misdemeanor, is charged to have'been done “ feloniously,” and that the indictment was therefore defective. But this court has repeatedly held that the use of the term “feloniously” in an indictment for a misdemeanor does not raise the grade of the offence, and the word is to be treated as surplusage : that calling a misdemeanor a felony does not make it one. State v. Slagle, 82 N. C., 653 ; State v. Watts, Ib., 656 ; State v. Slaton, 88 N. C., 654; State v. Upchurch, 9 Ired., 454. There is error.

Error.

Reversed.