State v. . Sheppard

1 S.E. 879, 97 N.C. 401

• Court: Supreme Court of North Carolina
• Decided: February 5, 1887
• Status: Published

Opinion

Davis, J.,

(after stating the facts). The first exception was to the refusal of the Court to quash the indictment. 'The record .shows that the .defendant had entered the plea of “ not guilty,” and issue joined. After plea and issue joined, the motion to quash may bo allowed, at the discretion of the Court, at any time before verdict. State v. Eason, 70 N. C., 90. Being a matter of discretion, upon proof of the fact that the witnesses were not sworn, the Court, in the exercise of its discretion, would doubtless have granted the motion, but if refused, the defendant might have pleaded in abatement, and shown, if such was the fact, that the witnesses had not been sworn; State v. Hines, 84 N. C., 810.

The second exception was to the refusal to grant the moj tion in arrest of judgment. “ Judgment can be arrested only for matter appearing in the record, or for some matter which ought to appear, and does not appear in the record.” The endorsements on the indictment have been held to be no part of the record; State v. Roberts, 2 D. &. B., 540; State v. Hines, supra.

After plea of not guilty, the defendant was not entitled, as a matter of right, to take advantage, by either motion, of the omission of the foreman to put a + before the. name of a witness.

A proper motion, in apt time, would doubtless have resulted in a correction of the omission, and as he was found guilty upon the issue raised by his plea, he suffered no wrong or injustice, of which he can complain.

There is no error. Let this be certified.

No error. Affirmed.