State v. . Francis

72 S.E. 1041, 157 N.C. 612, 1913 N.C. LEXIS 1

• Court: Supreme Court of North Carolina
• Decided: December 13, 1913
• Status: Published

Opinion

BeowN, J.

It is much the best that solicitors should fill in the blanks in the printed forms of indictment. It expedites the administration of the criminal law and prevents such appeals as this.

Had the defendant moved to quash this bill or for a bill of particulars to supply him with any needed information, it is probable the one motion or .the other would have been, allowed. The defendant has not been taken at any disadvantage, for he allowed the trial to proceed and attacked the bill only after he had been convicted. To arrest the judgment it must appear that the bill is so defective that judgment cannot be pronounced upon it.

The fact that the county in which the bill of indictment was found does not appear in the caption of the indictment does not constitute ground for arresting the judgment. S. v. Warden, 4 N. C., 596; S. v. Brickell, 8 N. C., 354; S. v. Lane, 26 N. C., 121; S. v. Dula, 61 N. C., 441; S. v. Sprinkle, 65 N. C., 463; S. v. Williamson, 81 N. C., 541; S. v. Arnold, 107 N. C., 864.

The caption is no part of the indictment, and its omission is no ground for arresting judgment. S. v. Arnold, 107 N. C., 864, and cases cited.

The term of the court being a part of the caption of the bill, the failure to insert it is no ground for arresting judgment.

Besides, the records of the Superior Court of McDowell County, embodied in the transcript of appeal sent to this Court, show that the bill was returned a true bill at February Term, 1911.

Time is not of the essence of the offense charged in the bill, and it was not necessary to allege the time at which the offense was committed. Revisal, 3255. S. v. Caudle, 63 N. C., 30; S. v. Taylor, 83 N. C., 601; S. v. Peters, 107 N. C., 876.

The burden of proof is on the State to show that the offense was committed within two years, and a failure to make such proof should be taken advantage of by the defendant by a request to instruct the jury. S. v. Carter, 113 N. C., 630; S. v. Holder, 133 N. C., 709.

The bill, while defective in form, is sufficient to sustain the judgment of the court.

Affirmed.