State v. . Smith

61 N.C. 340

• Court: Supreme Court of North Carolina
• Decided: June 5, 1867
• Status: Published

Opinion

Battle, J.

This case comes before us upon a motion for a new trial, and also upon a motion to arrest the judgment.

The motion for a new trial has been very properly abandoned by the counsel in this court, for there is not the slightest pretext for it. The bill of exceptions shows that the trial was fair, and the prisoner properly convicted.

Upon the motion in arrest the only error assigned is that the indictment describes the instrument with which the mortal blow was inflicted simply as “ a certain wooden stick of no value,” without stating its length and thickness, so as to show that it was a deadly weapon. It was necessary to set forth the manner of the death, and that, it is contended, was sufficiently done by the statement that it was with a “ wooden stick." In support of this proposition approved precedents are relied upon. Thus “ an iron poker ” and a “ certain stone are given as examples of the description of the instruments by which death was caused. See Wharton’s Precedents at pages 51 and 71. In State v. Owen, 1 Mur., 452, an indictment describing the instrument of death as “ a stick of no value ” was not noticed as an objection either by the counsel or the court. The case is of greater authority, because the counsel for the prisoner, who was a very able criminal lawyer, rested his motion for an arrest of the judgment upon a point of great doubt, and one which has been since settled against him by statute. Both the counsel and the court would have been relieved from their difficulty had the description of the stick been deemed insufficient.

The motion in arrest, as well as that for a new trial, must bei overruled, and, as we discover no error in the record, it must be so certified as the law directs.

Per Curiam. There is no error.