Opinion
(February Term, 1884.)
Indictment.
An indictment charging a misdemeanor as a felony does not raise the grade of the offence: calling it a felony does not make it one.
( State v. Slagle, 82 N.C. 653; State v. Watts; Ib., 656; State v. Staton, 88 N.C. 654; State v. Upchurch, 9 Ired., 454, cited and approved).
INDICTMENT for burning an uninhabited house tried at January Term, (1884), of CUMBERLAND Superior Court, before MacRae, J.
Attorney-General, for the State.
Messrs. J. W. Hinsdale and W. A. Guthrie, for defendant.
The indictment was found at fall term, 1883, and is in substance as follows: The jurors, c., present that the defendant, c., did unlawfully, wilfully, maliciously and feloniously set fire to and burn a certain uninhabited house, the property of J. C. Blocker, with intent to destroy said house and to injure said Blocker, contrary, c.
The jury returned a verdict of guilty, and the defendant moved in arrest of judgment, which motion was sustained and the state solicitor appealed.
The defendant is indicted for burning an uninhabited house, which by statute is made a misdemeanor (Bat. Rev., ch. 32, § 93), and the defendant moved to arrest judgment upon the ground that the offence, being only a misdemeanor, is charged to have been done "feloniously," and that the indictment was therefore defective. But this court has repeatedly held that the use of the term "feloniously" in an indictment for a misdemeanor does not raise the grade of the offence, and the word is to be treated as surplusage: that calling a misdemeanor a felony does not make it one. State v. Slagle, 82 N.C. 653; State v. Watts, lb., 656; State v. Slaton, 88 N.C. 654; State v. Upchurch, 9 Ired., 454. There is error.
Error. Reversed.