State v. . Oakley

9 S.E. 575, 103 N.C. 408

Opinion

MerrimoN, J.

The intent to defraud is an essential element of the offence charged in the indictment, and as it was not found by the special verdict that the defendant had, or had not, such intent in connection with the material facts •charged, the Court could not properly decide upon the facts found that he was guilty or not guilty, and hence it erroneously directed the verdict of not guilty to be entered. The special verdict was void, because the jury failed to find by it a material fact, and the Court should have quashed it, and directed a new trial, or it might, before the jury was discharged, have directed them to find the fact omitted from their verdict as part of it. A special verdict must always embrace all the facts material to the determination of the issue of fact raised by the pleading; otherwise, it is imperfect and void, and the Court cannot apply the law. In such case the material facts do not appear.

The issue raised by the plea of not guilty has not been tried in contemplation of law, and, therefore, there must be a new trial. This is well settled by numerous decisions of this Court. State v. Bray, 89 N. C., 480, and cases there cited.

The judgment and verdict must be set aside, and a new trial ordered. To that end, let this opinion be certified to the Superior Court. It is so ordered.

Error. New trial.