State v. Scott

75 S.E.2d 154 (1953)

237 N.C. 432

STATE v. SCOTT.

No. 295.

Supreme Court of North Carolina.

March 25, 1953.

*155 No appearance for appellant.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

PARKER, Justice.

It is well settled that a motion for the arrest of a judgment of the Superior Court in a criminal action tried in that Court may be made in the Supreme Court. It is the duty of this Court to examine the whole record, and if it sees that the judgment should be arrested, it will ex mero motu direct that it be done. The motion must be based upon matter appearing in the record, or upon an omission from the record of some matter which should appear therein. State v. Baxter, 208 N.C. 90, 179 S.E. 450; State v. Dilliard, 223 N.C. 446, 27 S.E.2d 85; State v. McKeon, 223 N.C. 404, 26 S.E.2d 914; State v. Johnson, 226 N.C. 266, 37 S.E.2d 678; State v. Foster, 228 N.C. 72, 44 S.E.2d 447. A valid indictment is an essential of jurisdiction. State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Jones, 227 N.C. 94, 40 S.E.2d 700.

At common law it is of vital importance that the name of the person against whom the offense was directed be stated with exactitude. 27 Am.Jur., Indictments and Informations, Sec. 80 and cases cited. "A variance * * * in the name of the person aggrieved is much more serious than a mistake in the name * * * of the defendant, as the latter can only be taken advantage of by the plea in abatement, while the former will be ground for arresting the judgment when the error appears on the record, or for acquittal, when a variance arises on the trial." Wharton's Criminal Procedure, 10th Ed., Vol. 1, Indictment, Sec. 158.

In State v. Henderson, 68 N.C. 348, the victim was described in the indictment as N. S. Jarrett and also as Nimrod S. Jarrett. The Court stated in that case that this was an informality in setting forth the name of the person injured, since it is a common practice with most persons to write their Christian names sometimes in full and sometimes by the initials only. The Court further stated "we are well aware that the English authorities have not gone to this extent." This case is clearly not in point. Ruffin, C. J., says for the Court in State v. Angel, 29 N.C. 27: "The purpose of setting forth the name of the person who is the subject on which an offense is committed is to identify the particular fact or transaction on which the indictment is founded, so that the accused may have the benefit of one acquittal or conviction if accused a second time."

The indictment in the instant case charges the victim of the assault in one place as George Rogers, and in another *156 place as George Sanders. If this conviction were allowed to stand, and if the defendant was indicted and tried thereafter for an assault upon George Rogers or George Sanders, he could not have the benefit of the conviction on this indictment because it does not state with exactitude the victim.

The indictment on its face is void, and the judgment is arrested. The legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment below, and the State may proceed against the defendant upon a sufficient bill of indictment. State v. Sherrill, 82 N.C. 694, 695.

Judgment arrested.