State v. . Rucker

68 N.C. 211

• Court: Supreme Court of North Carolina
• Decided: January 5, 1873
• Status: Published

Opinion

Settle, J.

The record discloses a murder shocking in its details, and the confessions of the prisoner, together with the corroborating evidence, fully warranted the jury in finding him guilty. But the bill of indictment is not only informal in many respects, hut fatally defective.

Neither the word feloniously nor the word felony is to be found in the bill of indictihent from the beginning to the end, and it is common learning, too plain to need citation of authority for its support, that the word feloniously is absolutely necessary in every indictment charging a felony, and it cannot be dispensed with or its use supplied by any circumlocution.

It is as necessary in an indictment charging a felony as the word heirs is in a deed conveying a fee simple. State v. Purdie, 67 N. C. Rep. 25; State v. Jesse, 2 Dev. & Bat. 297.

It follows that the judgment must be arrested, and that the prisoner upon this indictment is entitled to go without day. But as his life, in consequence of this fatally defective bill, has never been in jeopardy, there is nothing to prevent another bill being sent and a further prosecution for the murder.

Let this be certified.

Per Curiam.

Judgment accordingly.