Opinion
July Term, 1808.
Motion to quash an indictment. In cases of doubt the court will not quash an indictment. It is due to the State, and to the rights of the citizen, in such cases, to have the facts inquired into by a jury, and if the facts charged be affirmed by their verdict, the defendant can have the same advantage of legal points upon a motion in arrest, as upon a motion to quash. Therefore, the court refused to quash an indictment which charged "that the defendant, fraudulently intending to injure A. B., unlawfully and fraudulently procured a certificate of a survey on an entry of lands in the entry-taker's office of Brunswick County to be made by C. D., the surveyor of said county; which certificate set forth that the lands described therein had been surveyed, and that H and G were chain-carriers; when, in fact and in truth, the lands described in the certificate were not surveyed, and when, etc., H and G were not chain-carriers."
THIS case was sent to this Court for the opinion of the judges upon a motion to quash the following indictment:
From Wilmington District.
STATE OF NORTH CAROLINA, } Superior Court of Law, WILMINGTON DISTRICT. } May Term, 1806.
The jurors for the State, upon their oaths, present, that Benjamin Smith, late of the county of Brunswick, planter, fraudulently intending to deceive one Alfred Moore, on 5 January, 1803, at the county aforesaid, in the district aforesaid, unlawfully and fraudulently did procure a certificate of a survey on an entry of lands in the entry-taker's office of said county, and numbered 86, to be made by John Collier Baker, the surveyor of said county, which said certificate set forth and certified (214) that the lands described in the same had been surveyed, and that John Smith and George Logan were chain-carriers, when, in fact and in truth, the said lands described in said certificate were not surveyed, and when, in fact and in truth, the said John Smith and George Logan were not chain-carriers; all which the said Benjamin Smith then and there well knew, to the great damage of the said Alfred Moore, the evil example of all others in like cases offending, and against the peace and dignity of the State.
HENRY SEAWELL, Attorney-General.
It was contended in this case that the indictment is insufficient: (1) because it does not set forth any false token by which the fraud on Moore was intended to be effected; (2) because it does not set forth how or in what manner Moore could be injured; nor (3) how he was injured. (217)
We are not prepared to say that the offense charged in the indictment is not the subject of a criminal prosecution, or if it be, that it is stated in the bill with such plain and manifest imperfection as to call for the extraordinary interposition of the Court. In cases of doubt, it is alike due to public justice and the rights of the citizen that the facts shall be inquired into by a jury; and if the charges be affirmed by their verdict, the questions of law, introduced in the present discussion, will be still open to the defendant on a motion to arrest.
Cited: S. v. Heaton, 81 N.C. 545.
NOTE. — The defendant had been, in 1796, Speaker of the State Senate, and after this, in 1810, was elected Governor of the State. The prosecutor was a Justice of the Supreme Court of the United States. The surveyor, John C. Baker, represented the county of Brunswick in both branches of the General Assembly. — W. C.
(220)