State v. Edwards, 90 N.C. 710 (1884)

Feb. 1884 · Supreme Court of North Carolina

90 N.C. 710

STATE v. ALEXANDER EDWARDS.

Indictment.

An indictment charging a misdemeanor as a felony does not raise the grade-of the oflfence : calling it a felony does not make it one.

(Stale v. Slagle, S3 N. C., C53; Stale v. Watts, Jb., G56; State v. Staton, S3 NT. C., 6-34; State v. Upchurch, 9 Ired., 4S4, cited and approved).

INDICTMENT for burning an uninhabited house tried at January Term, 1884, of CUMBERLAND Superior Court, before dlaePute, J.

The indictment was found at fall tern:, 1883, and is in substance as follows: The jurors, &c., present that the defendant, &c., did unlawfully, wilfully, maliciously and feloniously set-lire to and burn a certain uninhabited house, the property of J. C. Blocker, with intent to destroy said house and to injure said Blocker, contrary, &c.

The jury- returned a verdict- of guilty, and the defendant-moved in arrest of judgment, which motion was sustained and the state solicitor appealed.

Attorney-General, for the State.

Messrs. J. W. Hinsdale and W. A. Guthrie, for defendant.

Asiie, J.

The defendant is indicted for burning an uninhabited house, which by statute is made a misdemeanor (Bat. Rev.,' ch. 32, §93), and the defendant moved to arrest judgment upon the ground that the offence, being only a misdemeanor, is charged to have'been done “ feloniously,” and that the indictment was therefore defective. But this court has repeatedly held that the use of the term “feloniously” in an indictment for a misdemeanor does not raise the grade of the offence, and the word is to be treated as surplusage : that calling a misdemeanor a felony does not make it one. State v. Slagle, 82 N. C., 653 ; State v. Watts, Ib., 656 ; State v. Slaton, 88 N. C., 654; State v. Upchurch, 9 Ired., 454. There is error.

Error.

Reversed.