— after stating the case: The statute (The Code, § 1022) prescribes that “ when any person charged with a crime or misdemeanor, or sentenced by the Court upon conviction of any offence, shall be legally committed to any Sheriff, Constable, or Jailer, or shall be arrested by any Sheriff, Deputy Sheriff, or Coroner acting as Sheriff, by virtue of any capias issuing on a bill of indictment, information, or other criminal proceeding, and such Sheriff, Deputy Sheriff, Coroner, Constable, Jailer, willfully or negligently, shall suffer such person so charged, or sentenced, and committed to escape out of his custody, the Sheriff, I)eput}T Sheriff, Coroner, Constable, or Jailer so offending, being thereof convicted, shall be removed from office and fined, at the discretion of the Court before whom the trial may be had,” &c. Plainly, the statute prescribes, and intends to prescribe, two distinct kinds of escape: one that is willfully suffered or permitted by the officers designated; the other when it is negligently suffered or permitted by them. The mischief to be suppressed is not single, but two-fold in its nature — of two distinct kinds — and hence, the disjunctive “or” is used between the descriptive words, “willfully” and “negligently.” And escape might be wilfully — on purpose— suffered; it might be negligenriy — carelessly—suffered. The latter is different and distinct from .the former. In either case the escape is mischievous, and the purpose is to suppress both. It would be seldom that an escape would be both willfully and negligently suffered, and a statute intended to suppress this evil only, would leave the greater and more frequent public grievance to flourish unmolested by the hand of justice. There is not the slightest reason for attributing to the disjunctive “or” the meaning of the conjunctive “and.” The indictment, therefore, properly charges that the escape was negligently suffered, omitting the word willfully. The word “unlawfully” used, while unnecessary, *897was no more than mere surplusage. State v. Baldwin, 80 N. C., 390; State v. Hunter, 94 N. C., 829.
The second ground of arrest of judgment assigned is without force in any aspect of it. The indictment, strictly speaking, was against only the two persons as to whom it was-found “ a true bill.” As to the third party, there was no indictment. Strictly, the indictment was but a simple bill until the grand jury presented it a true bill.' Then, and not till then, it became, properly, an indictment. State v. Ivey, 100 N. C., 539. Moreovér, if there had been a substantial variance between the charge and the proof, this could not be taken advantage of by a motion in arrest of judgment. This motion must be based upon some matter appearing on the face of the record.
The objection that the Court instructed the jury that they should find the defendant guilty if they believed the evidence cannot be sustained, because it was not conflicting. There were no variant aspects of it to be submitted. It was true the defendant was guilty in law; otherwise, he was not. The Court did not tell the jury that they ought or ought not to believe it. It expressed no — not the slightest — opinion as to whether the evidence should be believed or not. State v. Vines, 93 N. C., 493, and the cases there cited.
Affirmed.