State v. Tomlinson

77 N.C. 528

Opinion

Eaiecloth, J.

The bill of indictment cannot be held to ■embrace the offence denounced in Bat. Rev. ch. 32, §110, which provides against obstructions to the modes of furnishing water for the operation of mills, &c., because by its express terms the obstruction is located “in the mill race below the mill.” It was no doubt drawn in view of § 154 of said chapter, but it is fatally defective under that section, inasmuch as it fails to aver that said obstructions were not put in the race “for the purpose of utilizing water as a motive power,” or words of the same import. “If there be any exception contained in the same clause of the Act which creates the offence, the indictment must show negatively that the defendant, or the subject of the indictment does not come within the exception.” Archbold Cr. Pl. 25 ; State v. Norman, 2 Dev. 222.

Let it be certified that there was no error in the order-quashing the indictment to the end that the defendants may be discharged.

Peh Cueiam. Judgment affirmed