Sec. 271 (1191). Intent to defraud, what statement and proof sufficient; in same indictment, defendant may be charged with counts for receiving stolen goods and with larceny. R. C., c. 35, ss. 21, 23. 1852, c. 87, s. 2. 1874*5, c. 62.

In any case, where an intent to defraud is required to constitute the offence of forgery, or any other offence whatever, it shall be sufficient to allege, in the indictment, an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded; and on the trial of such indictment, it shall be sufficient, and not be deemed a variance, if there appear to be an intent to defraud the United States, or any state, county, city, town, or parish, or body corporate, or any public officer, in his official capacity, or any co-partnership or member thereof, or any particular person. The defendant may be charged in the same indictment in several counts with the separate offences of receiving stolen goods, knowing them to be stolen, and larceny.

INDICTMENT-GENERAL.

NEW BILL MAY BE SENT.-A bill of indictment returned "not a true bill" can not be reconsidered by the same grand jury, but a new bill may be sent. Brown, 81-568.

Where a bill is ignored, a new one charging defendant with the same offence may be sent to the same grand jury, and the same and additional evidence produced to support it. Harris, 91-656.

The state is not restricted to the first indictment found, but may at any time before trial send another and require defendant to answer that. Dixon, 78-558.

NO AMENDMENT WITHOUT SENDING TO GRAND JURY.-Indictments are not within the operation of the statute of jeofails, and can not be amended without concurrence of the grand jury. Sexton, 10 (3 Hawks), 184.

BILL OF PARTICULARS.-Where the indictment does not convey sufficient information to enable the defendant to prepare for his trial, he may apply to the prosecuting officer for a bill of particulars, and if refused he may apply to the court to direct that a bill of particulars be furnished. Brady, 107-822.

ACCOMPLICE WHO TESTIFIES MAY AFTERWARDS BE INDICTED.-The fact that an accomplice is introduced as a witness and testifies to such facts as are within his knowledge, withholding nothing because of its tendency to criminate himself, does not constitute a legal defence to a prosecution against him. He has an equitable claim to executive clemency, or the solicitor may enter a nol pros. Lyon, 81-600.

SIGNING NOT NECESSARY.-An indictment need not necessarily be signed by any one, or if signed by an attorney other than the regular solicitor, it is sufficient. Mace, 86-668.

THE WORD "FELONIOUSLY" MUST BE USED IN FELONIES.-The word "feloniously" is absolutely necessary in every indictment charging a felony, and it can not be dispensed with or its use supplied by any circumlocution. Rucker, 68-211.

A MISTAKE IN MARKING "A TRUE BILL," HOW SHOWN.-If a bill of indictment be endorsed "a true bill" by mistake, when the grand jury had ordered their clerk to endorse it "not a true bill," the defendant may show that fact by affidavit or otherwise, either upon a motion to quash or plea in abatement, and thereupon the indictment should be quashed. Horton, 63-595.

BAIL MAY BE REQUIRED WHEN BILL IS QUASHED.-Where an indictment is quashed, it is competent and proper for the court to require the de fendant to give bail to answer another indictment for the same offence. Griffice, 75-316.

NAME OF PERSON UNKNOWN. Although the name of the person on whom an offence is charged to have been committed be to the jurors unknown, yet the proof must identify the party injured as completely as if his real name appeared in the indictment. Trice, 88-627.

EFFECT OF VARIANCE.-The effect of a variance between the allegation and proof is to vacate the verdict and leave the defendant charged as before and liable to be tried again. Sherill, 82-694.

VERDICT SET ASIDE-NEW BILL.-Where, after verdict and judgment against defendant, the court set the same aside and granted a new trial, it is allowable to put the defendant upon trial on a new indictment found at the same term, upon the same testimony of the same witnesses, the two bills being treated as several counts in the same indictment. Lee, 114— 844.

SECOND BILL AT SAME TERM.-Where an indictment is of doubtful validity it is proper practice to send a second bill at the same term at which the first stood for trial. Lee, 114--844.

GENERAL VERDICT ON TWO COUNTS, ONE DEFECTIVE.-Where there are two counts, one good and the other defective, and a general verdict of guilty is rendered, the presumption is that the conviction was upon the good count and that the evidence supported the conviction. Edwards, 113-653.

When there are two bills found at the same term and the defendant is tried and convicted upon both, the two bills constitute, in effect, counts in the same bill, and if either is good it supports the verdict. Perry, 122-1018.

WHEN CAPTION TO INDICTMENT NECESSARY.-A caption to an indictment is necessary only when the court acts under a special commission, since when the court sits by authority of a public law everybody must take notice of it, and it is not necessary specially to set forth the power of the court. Wasden, 4 (Tay. Term), 596.

DUPLICITY.-Duplicity in a bill of indictment is ground only for a motion to quash, and being cured by verdict, is not ground for a motion in arrest of judgment. Wilson, 121-650.

DUPLICITY CURED BY VERDICT.-An indictment for larceny containing but one count, charging the ownership of the property stolen as 100 pounds of cotton the property of C, 100 pounds cotton the property of G, is bad for duplicity and obscurity, but if objection is not taken by motion to quash in apt time the defect is cured by the verdict. Simons, 70— 336.

While a bill containing unnecessary averments is bad for duplicity such defects are cured by a verdict. Hart, 116-976.

CONSOLIDATION OF INDICTMENTS.-Where the defendant is charged in four separate indictments with larceny, the court may conso..date and

treat them as if the several offences charged had been embraced in one indictment containing different counts. Such consolidation, however, should only be allowed in cases where the presiding judge is satisfied that the ends of justice require it, and the solicitor should be forced to elect on which bill he asks for a conviction before the defendant is required to give his evidence. McNeill, 93-552.

The finding of a new bill for the same felony, varying the terms in which the offence is charged, is simply adding a new count, and the whole constitutes but one proceeding. Johnson, 50 (5 Jones), 221.

NEGATIVING PROVISO.--The general rule as to the form of statutory indictments is that it is not requisite, where they are drawn under one section of the act to negative an exception contained in a subsequent distinct section of the same statute. Harris, 119-811.

"THEN AND THERE."-The words "then and there" in an indictment have reference only to the time and to the venue, and not to any public place before mentioned. Langford, 25 (3 Ire.), 354.

THE TIME. All that is necessary as regards laying the time in an indictment is that the offence appear to have been committed before the finding of the bill, except in those cases where time forms part of the offence. Haney, 8 (1 Hawks), 460.

The date in an indictment is not material. Williams, 117-753.

CHANGING OFFENCE.-The court has no power to change an indictment so as to charge an offence entirely different and calling for a punishinent entirely different from and not included in that passed upon by the grand jury, and no consent or submission of the defendant can give the court jurisdiction of the substituted offence. Jones, 101-719.

QUASHING.- A motion to quash made after verdict can not be entertained. Barbee, 93-498.

After a motion to quash an indictment containing two counts, one of which is defective, the solicitor may enter a nol pros. as to the defective count, and try on the other. Buchanan, 23 (1 Ire.), 59.

The judges are in no case bound, ex debito justitiae, to quash an indictment however defective, but may require the defendant either to plead or demur, and it is a general rule that no indictment will be quashed which charges the higher offences, as treason or felony, or those crimes which immediately affect the public, as perjury, forgery and like offences. In such cases the court will hold the prisoner and permit the solicitor to send a new bill curing the defect. Quashing, though allowable, is not favored, since it releases recognizances and sets defendants at liberty when they ought to be held. Flowers, 109-.

A bill charging a felony should not be quashed, but the defendant should be held until a new bill can be sent. Caldwell, 112-854.

GRAND JUROR SERVING AS JUROR ON THE TRIAL.-The fact that a member of the grand jury which returned a true bill for perjury was one of the petit jury that tried the issues in an action wherein it was charged the perjury was committed, is no ground for abating or quashing the indictment. Wilcox, 104-847.

MOTION TO QUASH.--A motion to quash made after verdict can not be entertained. Barbee, 93-498.

Where there are two defendants, and the bill shows that they were "sworn and examined," and the grand jury ignored the bill as to one and found a true bill as to the other, there is no presumption of law that the latter defendant was examined against himself, and a motion to quash and to arrest judgment on this account were both properly refused. Frizell, 111-722.

INFANTS.

An infant under fourteen years of age is not liable to indictment for an ordinary misdemeanor unless the facts exhibit brutal passion, the use of a deadly weapon, the infliction of maim, or other acts of like character. Yeargan, 117-706.

The rule as to the liability of infants for crime is

1. Under seven years of age an infant can not be indicted and punished for any offence;

2. Between seven and fourteen an infant is presumed to be innocent, but the presumption in certain cases may be rebutted. The cases in which such presumption may be rebutted and the accused punished when under fourteen are such as an aggravated battery as in maim, or the use of a deadly weapon, or in numbers amounting to a riot, or a brutal passion as in an attempt at rape, and the like. In such cases malice and wickedness supply the want of age, and if defendant be doli capax he must be punished. Yeargan, 117-706.

An infant between seven and fourteen years of age may be punished for a maim if found doli capax. Yeargan, 117-706.

An infant under the age of fourteen years, who played at a game of chance called "shooting craps," well knowing the difference between right and wrong, but who did not know the act was unlawful, is not indictable for gambling. Yeargan, 117-706.

An infant is not indictable for disposing of mortgaged property, since the alleged disposition amounts to a disaffirmance of the contract. Howard, 88-650.

An infant between seven and fourteen years of age may be punished for an aggravated battery with a deadly weapon if he be doli capar. Yeargan, 117-706.

The question as to whether a witness has sufficient mental capacity and sense of moral obligation to testify in a case is one of fact to be determined by the court, and can not be reviewed on appeal. Edwards, 79648.

Whether an infant has sufficient intellect and sense of the obligation of an oath to be competent as a witness is a matter within the discretion of the trial judge, and his action is not reviewable. Manuel, 64-601.

The court is the exclusive judge whether a witness has sufficient intelligence to testify. Perry, 44 (Busb.), 330.

Where the defence is that defendant is under age of presumed capacity the burden lies upon him. If the age can be ascertained by inspection the court and jury may decide. Arnold, 35 (13 Ire.), 184.

See also MINORS-As witnesses see EVIDENCE, subdivision INFANTS.

INJURING PERSON IN ANOTHER STATE.

Sec. 272. Any person injuring another person in another state guilty of a crime. 1895, c. 169.

SECTION 1. If any person, being in this state, shall unlawfully and wilfully put in motion a force, from the effect of which any person shall be injured while in another state, the person so setting such force in motion shall be guilty of the same offence in this state, as he would be if the effect had taken place within this

state.

Where one puts in force an agency for the commission of crime he, in legal contemplation, accompanies the same to the point where it becomes effectual; the criminal act is the impinging of the weapon on the party injured, and that is where the impingement happens; therefore, where one, standing in North Carolina, by the firing of a bullet, killed another standing in Tennessee, the assault or stroke was in the latter state and at common law the murder was committed in that state, and its courts alone have jurisdiction of the offence. Hall, 114-909.

Where the fatal stroke and death occur in the same state, the offence of murder at common law is there complete, and the courts of that state can alone try the offender for that specific common law crime. Hall, 114-909.

(This case was decided prior to the enactment of the foregoing statute.)

INJURY TO PROPERTY.

See also INJURY TO STOCK AND STOCK LAW AND FENCES.

Sec. 273 (1062). Injuries to houses, churches and fences. R. C., c. 34, s. 103.

If any person shall, by any other means than burning or attempting to burn, unlawfully and wilfully demolish, destroy, deface, injure, or damage any of the houses or buildings previously mentioned in this chapter; or shall unlawfully and wilfully burn, demolish, pull down, destroy, deface, damage, or injure any church, uninhabited house, outhouse, or other house or building not mentioned before in this chapter; or shall unlawfully and wilfully burn, destroy, pull down, injure or remove any fence, wall, or other inclosure, or any part thereof surrounding or about any yard, garden, cultivated field or pasture, or about any church, grave-yard, factory, or other house in which machinery is used, every person so offending shall be guilty of a misdemeanor.