State v. Haney, 8 N.C. 460, 1 Hawks 460 (1821)

Dec. 1821 · Supreme Court of North Carolina

8 N.C. 460, 1 Hawks 460

State v. Haney.

From Rutherford,

All that is necessary, as regards laying the time in a bill of indictment, is, that the offence shall appear to have been committed before the finding of the bill, except in those cases where the time forms part of the offence.

In general, the time is not traversable, and if it be laid after a scilicet, and be repugnant to the time laid in a former part of the indictment, the scilicet will be rejected as superfluous.

This was an indictment for a libel, on which the Defendant had been convicted before Norwood, Judge.

The indictment was as follows, viz :

“ The Jurors for the State upon their oath present, that Timothy Haney, of the county of Rutherford, on the 22d day of April, 1819, maliciously and falsely intending to defame one Richard Good, an honest and good citizen of this State, and to bring him into hatred and contempt among the citizens of this State, on the day and year aforesaid, in the county aforesaid, a certain false, scandalous and libellous writing against the said Richard Good falsely and maliciously did frame and make, and then and there did cause to be written and made, and also then and there did cause to be published in the form of an advertisement, the substance of which writing is as follows, to wit, (here follows the libellous matter;) and that the said Timothy Haney, with an intention to scandalize the said Richard Good, and to bring him into contempt, hatred and disgrace, the said false, malicious and scandalous libellous writing, so as aforesaid framed, written and made, afterwards, to wit, on the said 22d day of October, 1818, and on divers other days and times, as well before as afterwards, in the county aforesaid, to divers good citizens of this State, then and there present, falsely, maliciously and scandalously did openly publish, to the great, scandal, infamy and disgrace of the said Richard Good, against the peace and dignity of the State.5’

The Defendant moved in arrest of judgment, because the days charged in the bill of indictment are repugnant and inconsistent, to wit, the framing the libel is charged to have been on the 22d of April, 1819, and the publication to have been made on said 22d day of October, 1818.

Tavior, Chief-Justice.-

1The objection to this indictment is, that the publication is stated to have taken place on a day before the libel was framed, which therefore creates a fatal repugnancy. It must be observed, however, that the first part of the indictment contains a distinct charge of the making, as well as publication, on the 22d April, 1819. The publication charged after-wards, is preceded by a sdlicet, introducing a repugnant date. Now all that is necessary in regard to laying the time in an indictment, is, that the offence shall appear to have been committed before the finding of the bill, excepting in those cases where the time forms part of the offence, as in prosecutions which are limited to a certain period, and in murder, where the time of the death must be laid within a year and a day after the mortal stroke given. But generally, where the time when an offence was committed is immaterial, and it is still indictable, whether done at one time or another, there it is not tra-versable if alleged after a scilicet; and its repugnancy to the premises will not vitiate, but the scilicet itself will be rejected' as superfluous—(1 Saund. 170.) Then rejecting the date which is last stated in the indictment, for its repugnancy, together with all that is connected with it, from the words “ and that,” to the word “publish” inclusive, the offence was committed on the 22(1 April, 1819, which is before the finding of the bill. I am therefore of opinion, that the reasons in arrest be overruled.

Haiii and Henderson, Judges, concurred.