State v. Orrell, 12 N.C. 139, 1 Dev. 139 (1826)

Dec. 1826 · Supreme Court of North Carolina

12 N.C. 139, 1 Dev. 139

The State v. Curtis Orrell.

From New-Hanover.

"When the death does not ensue within a year and a day after a wound is inflicted, the law presumes that it proceeded from some other cause. Hence, an indictment, upon which it does not appear that the death happened within a year and a day after the wound was given, is fatally defective.

The prisoner was tried upon the following indictment:

“ The Jurors for the State upon their oath present, that Curtis Or-rell, late of the County of New-Hanover, labourer, not having the fear of God before his eyes, but being moved and seduced by lie instigation of the Devil, on the seventeenth day of May, in the year of our Lord one thousand eight hundred and twenty-six, with force and arms, in the County of New Hanover, in and upon one Penelope Or-rell. in the peace of God and the State, then and there being, feloni-ously, wilfully and of his malice aforethought, did make an assault 5 and that the said Curtis Orrell, a certain gun, of the value of five shillings, then and there loaded and charged with gun-powder and leaden shot, which gun he the said Curtis Orrell, in his hands then and there had and held, to, against, and upon the said Penelope Orrell, then and there feloniously, wilfully, and of his malice aforethought, did shoot and discharge, and that the said Curtis Orrell, with the leaden shot aforesaid, out of the gun aforesaid, then and there by the force of the gunpowder, shot and sent forth as aforesaid, the said Penelope Orrell, in and upon the left side of her the said Penelope Orrell, a little above the left hip of her the said Penelope Orrell, then and there feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound, giving to the said Penelope Orrell, then and there, with the leaden shot aforesaid, so as aforesaid shot discharged and sent forth out of the gun aforesaid, by the said Curtis Orrell. in and upon the left side of her the said Penelope Orrell, a little above the left hip of her the said Penelope On-ell, one mortal wound, of the depth of six inches, of which said mortal wound, the said Penelope Orrell died. And so the Jurors aforesaid, upon their oath aforesaid, do say, that the said Curtis Orrell, the said Penelope Orrell, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill' and murder, &c.”

After a verdict for the State, the prisoner’s Counsel moved in arrest of judgment:—

1st. Because it was not averred in the indictment that the death happened within a year and a day, after the mortal wound was given. .

2d. Because it did not appear upon the indictment, that the deceased died in the county of New-Hanover.

For these reasons, the judgment was arrested by iiis honor Judge Norwood, whereupon the Solicitor prayed an appeal.

No Counsel appeared for the prisoner in this Court, and the case was submitted by the Mtorney-General, without argument.

Henderson, Judge.

All the authorities tells us, that some period of time when the alleged offence was committed, must be stated in the indictment; yet the very same authorities most expressly inform us, that it is entirely unimportant to coniine the proofs of the commission of the crime to the day charged, aü-that is required is to show the offence was committed prior to the filing of the bill of indictment. Thus an indictment, omitting to state any time when an offence was committed, is insufficient ; yet if the bill states that the offence was committed, as in this case, on the 17th day of May 1826, proof of an offence committed on the 1st day of January 1825, will support the charge. All that the law requires, is that an offence prior in point of time, to the filing of the bill, should be proved. But it is our business to declare the law as we find it established by the law-makers — not to make it ourselves ; from these principles, it necessarily follows, that we must not understand that the mortal wound was given on the 17th day of May 1826. It may have been given at any day previous to the finding of the bill, for such proof would have supported the charge that it was given on that day. We cannot therefore, draw any aid from the time laid in the bill* when the wound was given, and by comparing that time, with the filing of the hill, shew that the death followed within one yean and a day, from the time the wound'vv as adven. If such was mit She case, tiiat is , , ... , , „ if deatli did not take place within a year and a day of the time of receiving the wound, the law draws the con-elusion, that it was not the cause of death ; and neither the C'purt nor Jury, can draw a contrary one.— It not appearing therefore upon this indictment, wiien the death happened, and as it may have been more than the period aforesaid, after the wound, the Court is bound to say that it does not appear to them, that the Defendant has been guilty of the murder of the deceased. The judgment therefore, was properly arrested in the Court below, for it is essentia! that it should appear, that death ensued within what may be called the prescribed time.

Tayxor, Chief-Justice.'

I cannot doubt that both the objections'to this indictment are well taken. The place of the death ought to be stated, to the end of shewing that the offence charged, is within the jurisdiction of the Court. Though the rule was plain at common law, that murder, in common with other offences, must be enquir-ed into, in the county wherein it was committed ; yet it was doubted, whether if a person received the stroke in one county, and died in another, the offence was completed iti either. The statute of 2 & 3 Ed. vi, provides however, that the trial shall be in the county where the death happens, and supposing that statute to be in force, it cannot be intended on this indictment,' that the death took place in New-Hanover; for aught that appears, it may have taken place out of the State.

Nor is it less important to state the time of the death, in order to show that the deceased died of the wound given her by tiie prisoner, within a year and a day after she received it. For if the death happened beyond that time, the law would presume that it proceeded from some other cause than the wound. (2 Inst. 218.) For these reasons, I am of opinion the judgment should be arrested.

JUDSMENT AEEIRMEB.