Where an indictment charged the larceny of a horse to have been committed at a certain time since the passage of the statute which prescribed the punishment of such a larceny, and the defendant was found guilty, judgment cannot be arrested upon the ground that prior to that time there had been several statutes prescribing different modes of punishment.
It is no ground for the arrest of judgment that the indictment charged the offence to have been committed in the said "count," as it had caption, "Cumberland county," and the defendant was stated to be of that county. It is an informality which is saved by the Rev. Code ch. 35 sec. 14.
The case of State v. Wise, 66 N.C. 120, cited distinguished from this and approved, and that of State v. Smith, 63 N.C. 234, cited and approved.
READE, J.
At the time charged in the indictment when the offense was committed, and at the time when it was proved to have been committed, there was but one statute in existence prescribing the punishment of the offense charged, although there had been years before several statutes changing the punishment from time to time. And on this ground the defendant moved in arrest of judgment. His argument is that inasmuch as the time stated in the indictment is not traversable, and need not be proved, its office is not to inform the Court when the offense was committed, and that although the indictment charges the offense to have been committed after the statute, yet a conviction might have been had although the crime had been committed before. And the defendant relies on State v. Wise, 66 N.C. 120. But that case was not like this. The indictment in Wise's case charged the crime to have been committed the 1st day January, 1871, at which time the punishment was confinement in the penitentiary. Subsequently an Act was passed making the punishment death. This Act was ratified 4th April, 1871. The offense was proved to have been committed after this last Act, although it was charged in the indictment to have been committed before, and the punishment was laid under the last Act, death. The Court arrested the judgment because it could not see from the indictment on the record that the offense was committed after the Act of the 4th April, 1871.
But in the case before us there was but one statute in existence and the indictment charges the offense to have been committed after the statute, and the verdict is guilty in manner and form as charged.
So that it does appear to the Court at what time the offense was committed and what is the proper punishment.
The second objection made by the defendant is that the indictment does not charge the offense to have been committed in the county, but in the "count."
The indictment is headed "Cumberland county," and states that the defendant was "of Cumberland county," and that he committed the offense in the "count aforesaid." Now there is no "count aforesaid" to which this can refer, and it is palpable that it refers to the county aforesaid, and the defendant could not have been misled. It is an informality (may be an inexcusable negligence) which is cured by our statute, Rev. Code chap. 35, State v. Smith, 63 N.C. 234.
There is no error. This will be certified, c.
PER CURIAM. Judgment affirmed.