Opinion
(June Term, 1877.)
Indictment — Navigable Streams — Obstructions.
1. Upon an indictment charging that the defendants did "unlawfully and willfully fell trees and place obstructions in the mill-race below the mill of F., the same being a natural passage for water, but not navigable for rafts, etc., whereby the natural flow of water through said race was retarded," etc.: Held. (1) that as the obstructions were placed below the mill, the offense charged was not a violation of Bat. Rev., ch. 32, sec. 110: (2) that as the indictment does not contain an averment that the obstructions were not put in the race "for the purpose of utilizing the water as a motive power," it is fatally defective under Bat. Rev., ch. 32, sec. 154.
2. An indictment should negative an exception contained in the same clause of the act creating the offense.
INDICTMENT for a misdemeanor, tried at Spring Term, 1877, of WILSON, before Moore, J.
Attorney-General for the State. (529)
Hugh F. Murray for defendants.
The defendants, Wiley, Frank, John, and Buck Tomlinson, were indicted as follows:
"The jurors, etc., present, that (defendants) did . . . unlawfully and willfully fell trees and place obstructions in the mill-race below the mill of one C. F. Finch, the same being a natural passage for water, but not navigable for flats or rafts, whereby the natural flow of water through said mill-race was retarded, contrary," etc. Upon motion of defendants' counsel, his Honor quashed the bill of indictment, and Moore, solicitor for the State, appealed.
The bill of indictment cannot be held to embrace the offense denounced in Bat. Rev., ch. 32, sec. 110, which provides against obstructions to the modes of furnishing water for the operation of mills, etc., because by its express terms the obstruction is located "in the millrace below the mill." It was no doubt drawn in view of section 154 of said chapter, but it is fatally defective under that section, inasmuch as it fails to aver that said obstructions were not put in the race "for the purpose of utilizing water as a motive power," or words of the same import. "If there be any exception contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant, or the subject of the indictment, does not come within the exception." Archbold Cr. Pl., 25; S. v. Norman, 13 N.C. 222.
PER CURIAM. Affirmed.
Cited: S. v. Narrows Island Club, 100 N.C. 482; S. v. Turner, 106 N.C. 694; S. v. Poole, ib., 700; S. v. Downs, 116 N.C. 1067; S. v. Newcomb, 126 N.C. 1106; S. v. Yoder, 132 N.C. 1118; S. v. Hicks, 143 N.C. 694.
(530)