State v. Fowler

Supreme Court of North Carolina

State v. Fowler

146 S.E.2d 418, 266 N.C. 528, 1966 N.C. LEXIS 1379

CourtSupreme Court of North Carolina

DecidedFebruary 4, 1966

Docket257

StatusPublished

Cited by20 cases

This text of 146 S.E.2d 418 (State v. Fowler) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Fowler, 146 S.E.2d 418, 266 N.C. 528, 1966 N.C. LEXIS 1379 (N.C. 1966).

Pincite

Opinion

PaeiceR, J.

In North Carolina the crime of false pretense is statutory, G.S. 14-100, and the statute specifically states the crime is a felony. S. v. Davenport, 227 N.C. 475, 495, 42 S.E. 2d 686, 700.

The indictment in the instant case purports to charge defendant with the crime of false pretense as defined in G.S. 14-100, yet the indictment contains no where in it the word feloniously. We have held repeatedly that indictments charging felonies which omit the word feloniously are fatally defective, unless the General Assembly otherwise expressly provides, and the judgment must be arrested. S. v. Jesse, 19 N.C. 297; S. v. Purdie, 67 N.C. 26; S. v. Rucker, 68 N.C. 211; S. v. Caldwell, 112 N.C. 854, 16 S.E. 1010 (a false pretense case); S. v. Callett, 211 N.C. 563, 191 S.E. 27; S. v. Whaley, 262 N.C. 536, 138 S.E. 2d 138; S. v. Price, 265 N.C. 703, 144 S.E. 2d 865.

Defendant made no motion in the trial court or in the Supreme Court to arrest the judgment in the instant case because the indictment is fatally defective, in that it omits the word feloniously.

The indictment is a part of the record proper. The court cannot properly give judgment unless it appears in the record that an offense is sufficiently charged. It is the duty of this Court to look through and scrutinize the whole record, and if it sees that the judgment should have been arrested, it will ex mero mo tu direct it to be done. This Court ex mero motu takes notice of the fatally defective indictment in the instant case, and orders that the judgment of imprisonment in the instant case be arrested. S. v. Strickland, 243 N.C. 100, 89 S.E. 2d 781; S. v. Thorne, 238 N.C. 392, 78 S. E. 2d 140; S. v. Scott, 237 N.C. 432, 75 S.E. 2d 154.

*531 The indictment on its face is void, and the judgment is arrested. The legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment below, and the State, if it is so advised, may proceed against the defendant upon a sufficient bill of indictment. S. v. Rucker, supra; S. v. Caldwell, supra; S. v. Callett, supra; S. v. Scott, supra; S. v. Faulkner, 241 N.C. 609, 86 S.E. 2d 81; S. v. Strickland, supra; S. v. Whaley, supra; 21 Am. Jur. 2d, Criminal Law, § 524.

Judgment arrested.

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PaeiceR, J.

In North Carolina the crime of false pretense is statutory, G.S. 14-100, and the statute specifically states the crime is a felony. S. v. Davenport, 227 N.C. 475, 495, 42 S.E. 2d 686, 700.

The indictment in the instant case purports to charge defendant with the crime of false pretense as defined in G.S. 14-100, yet the indictment contains no where in it the word feloniously. We have held repeatedly that indictments charging felonies which omit the word feloniously are fatally defective, unless the General Assembly otherwise expressly provides, and the judgment must be arrested. S. v. Jesse, 19 N.C. 297; S. v. Purdie, 67 N.C. 26; S. v. Rucker, 68 N.C. 211; S. v. Caldwell, 112 N.C. 854, 16 S.E. 1010 (a false pretense case); S. v. Callett, 211 N.C. 563, 191 S.E. 27; S. v. Whaley, 262 N.C. 536, 138 S.E. 2d 138; S. v. Price, 265 N.C. 703, 144 S.E. 2d 865.

Defendant made no motion in the trial court or in the Supreme Court to arrest the judgment in the instant case because the indictment is fatally defective, in that it omits the word feloniously.

The indictment is a part of the record proper. The court cannot properly give judgment unless it appears in the record that an offense is sufficiently charged. It is the duty of this Court to look through and scrutinize the whole record, and if it sees that the judgment should have been arrested, it will ex mero mo tu direct it to be done. This Court ex mero motu takes notice of the fatally defective indictment in the instant case, and orders that the judgment of imprisonment in the instant case be arrested. S. v. Strickland, 243 N.C. 100, 89 S.E. 2d 781; S. v. Thorne, 238 N.C. 392, 78 S. E. 2d 140; S. v. Scott, 237 N.C. 432, 75 S.E. 2d 154.

*531 The indictment on its face is void, and the judgment is arrested. The legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment below, and the State, if it is so advised, may proceed against the defendant upon a sufficient bill of indictment. S. v. Rucker, supra; S. v. Caldwell, supra; S. v. Callett, supra; S. v. Scott, supra; S. v. Faulkner, 241 N.C. 609, 86 S.E. 2d 81; S. v. Strickland, supra; S. v. Whaley, supra; 21 Am. Jur. 2d, Criminal Law, § 524.

Judgment arrested.

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Bluebook (online)

146 S.E.2d 418, 266 N.C. 528, 1966 N.C. LEXIS 1379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fowler-nc-1966.

Opinion

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