Indictment for False Pretense — Felony — Omission of Word "Feloniously" — Arrest of Judgment — Motion to Quash.
1. The offense of obtaining goods under false pretense, being punishable by imprisonment in the penitentiary, is a felony, under the classification by chapter 205, Laws 1891, and a bill of indictment charging such offense, and which omits the word "feloniously," is defective, and judgment will be arrested on a verdict of guilty.
2. The motion for arrest of judgment on the ground of the insufficiency of the bill of indictment may be taken in this Court for the first time.
3. A bill of indictment for a felony, though defective, should not be quashed, but the prisoner should be held until the solicitor can send a new bill curing the defect.
CLARK, J.
The offense charged is obtaining goods under false pretense, which may be punished by imprisonment in the penitentiary. The Code, secs. 1025, 1026. Since the enactment of chapter 205, Laws 1891, defining the line between felonies and misdemeanors, all offenses which may be punished by death or imprisonment in the penitentiary are felonies. The bill is defective as a charge for false pretense, as it omits the word "feloniously," and judgment must be arrested. S. v. Skidmore, 109 N.C. 795; S. v. Purdie, 67 N.C. 25. There is no exception stated for the refusal to grant the motion in arrest of judgment, but that is a motion which may be taken here for the first time. Rule 27 of the Supreme Court. There is an exception to the refusal to quash, but that motion was properly refused. S. v. Flowers, 109 (856) N.C. 841. The judge should have held the prisoner and have given the solicitor opportunity to send a new bill curing the defect. This should not have caused a postponement of the trial to the next term. S. v. Skidmore, supra.
JUDGMENT ARRESTED.
Cited: S. v. Lee, 114 N.C. 846; S. v. Wilson, 116 N.C. 980; S. v. Bunting, 118 N.C. 1200; S. v. Harwell, 129 N.C. 551, 555; S. v. Marsh, 132 N.C. 1001; S. v. Stephens, 170 N.C. 747; S. v. Paris, 181 N.C. 585.
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