1. Where judgment can not be pronounced against a prisoner, on account of the ambiguity in an indictment, in omitting to aver under what statute it was framed, there being two in reference to the same subject, such omission can not be supplied by a plea to the further prosecution of the case, filed by the prisoner's counsel, admitting the time when the offense was committed.
2. No such effect can be allowed to the action of counsel. A record cannot be aided by matter in pais. Sufficient matter must appear on the record to enable the Court to proceed to judgment.
PEARSON, C. J.
When this case was before us, 66 N.C. 120, the motion for judgment of death was disallowed on the ground that it could not be seen by the record that the prisoner had been charged and convicted under the act of 1871. On the argument of the present motion it was conceded by the Attorney General that the motion for judgment — confinement in the penitentiary, could not be allowed on the ground that it can not be seen by the record that the prisoner had been convicted under the act of 1869, and so no judgment can be pronounced, unless the plea (as it is termed) against the further prosecution of the indictment, filed on the part of the prisoner by his counsel, in which the fact is set out that upon the trial Mason testified that the house was burnt on 1 August, 1871, which fact was admitted by the Solicitor for the State, has the legal effect to aid the indictment, and show that the prisoner was charged and convicted for a violation of the act of 1871, and thus to remove the ambiguity in respect to whether the prisoner was charged and convicted for a violation of the act of 1871, or of the act of 1869. In which case it is insisted that judgment of death shall not be pronounced, as upon a conviction under the act of 1871, although such judgment was not entered on the record, as it then appeared. No such effect can be allowed to the action of counsel. A record can not be aided by matter in pais, Sufficient matter must appear on the record to enable the Court to proceed to judgment. Rev. Code, ch. 35, sec. 14.
PER CURIAM. Affirmed.
Cited: S. v. Long, 78 N.C. 573; S. v. Watkins, 101 N.C. 704.
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