State v. Scott

75 S.E.2d 154, 237 N.C. 432, 1953 N.C. LEXIS 649

• Court: Supreme Court of North Carolina
• Decided: March 25, 1953
• Docket: 295
• Status: Published

Opinion

PabKER, J.

It is well settled that a motion for tbe arrest of a judgment of tbe Superior Court in a criminal action tried in that court may be made in tbe Supreme Court. It is tbe duty of this Court to examine tbe whole record, and if it sees that tbe judgment should be arrested, it will ex mero motu direct that it be done. Tbe motion must be based upon matter appearing in tbe record, or upon an omission from tbe record of some matter which should appear therein. S. v. Baxter, 208 N.C. 90, 179 S.E. 450; S. v. Billiard, 223 N.C. 446, 27 S.E. 2d 85; S. v. McKeon, 223 N.C. 404, 26 S.E. 2d 914; S. v. Johnson, 226 N.C. 266, 37 S.E. 2d 678; S. v. Foster, 228 N.C. 72, 44 S.E. 2d 447. A valid indictment is an essential of jurisdiction. S. v. Morgan, 226 N.C. 414, 38 S.E. 2d 166; S. v. Jones, 227 N.C. 94, 40 S.E. 2d 700.

At common law it is of vital importance that tbe name of tbe person against whom tbe offense was directed be stated with exactitude. 27 Am. Jur., Indictments and Informations, Sec. 80, and cases cited. “A variance ... in tbe name of the person aggrieved is much more serious than a mistake in tbe name ... of tbe defendant, as tbe latter can only be taken advantage of by tbe plea in abatement, while tbe former will be ground for arresting tbe judgment when tbe error appears on tbe record, or for acquittal, when a variance arises on tbe trial.” Wharton’s Criminal Procedure, 10th Ed., Yol. 1, Indictment, Sec. 158.

In S. v. Henderson, 68 N.C. 348, tbe victim was described in tbe indictment as N. S. Jarrett and also as Nimrod S. Jarrett. Tbe Court stated in that case that this was an informality in setting forth tbe name of tbe person injured, since it is a common practice with most persons to write tbeir Christian names sometimes in full and sometimes by the initials only. Tbe Court further stated “we are well aware that tbe English authorities have not gone to this extent.” This case is clearly not in point. Ruffin, G. J., says for tbe Court in S. v. Angel, 29 N.C. 27: “The pur pose of setting forth the name of the person who is the subject on which an offense is committed is to identify the particular fact or transaction on which the indictment is founded, so that the accused may have the benefit of one acquittal or conviction if accused a second time.”

The indictment in the instant case charges the victim of the assault in one place as George Rogers, and in another place as George Sanders. If this conviction were allowed to stand, and if the defendant was indicted and tried thereafter for an assault upon George Rogers or George Sanders, he could not have the benefit of the conviction on this indictment because it does not state with exactitude the victim.

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 may proceed against the defendant upon a sufficient bill of indictment. S. v. Sherrill, 82 N.C. 695.

Judgment arrested.