HUSBAND AND WIFE.

Sec. 263 (972). Adequate support; failure of husband to provide for wife and children. 1868-'9, c. 209, s. 2. 1873-'4, c. 176, s. 11. 1879, c. 92. 1889, c. 504. 1893, c. 83.

If any husband while living with his wife shall wilfully neglect to provide adequate support for such wife or the children which he has begotten upon her, he shall be guilty of a misdemeanor.

IDEM SONANS.

See FORGERY-LARCENY.

ILLEGAL VOTING.

UNCOMMUNICATED OPINION OF JUDGES.-Where a person living in one county voluntarily votes in another, the unlawful purpose prima facie attaches to the act, and the fact that the judges of election discussed the question among themselves and decided that he had a right to cast such vote, such discussion not being heard by defendant, nor the opinion communicated to him, can not take away the criminality of the act. Hart, 51 (6 Jones), 389.

DECISION OF JUDGES IN FAVOR OF VOTER.—The decision of the judges of election that a person is entitled to vote is a complete defence to an indictment for illegal voting, although such person may not in fact be entitled to vote. Distinguishing State v. Boyett, 10 Ired., and State v. Hart, 6 Jones, 389. Pearson, 97--434.

ADVICE NO EXCUSE.-On indictment for knowingly and fraudulently voting at an election, it is no excuse to show that defendant was advised by a very respectable gentleman that he had a right to vote, since "ignorance of the law excuses no man." Boyett, 32 (10 Ired.), 336.

IRREGULAR ELECTION NO DEFENCE.-One who votes illegally can not defend himself against an indictment on the ground that the election was conducted irregularly. Cohoon, 34 (12 Ired.), 178.

INCEST.

Sec. 264 (1060). Incest; carnal intercourse between grandparent and grandchild, parent and child, brother and sister, a felony. 1879, c. 16, s. 1.

In all cases of carnal intercourse between grandparent and grandchild, parent and child, and brother and sister, of the half or whole blood, the parties shall be guilty of felony, and punished for every such offence by imprisonment in the county jail or penitentiary for a term not exceeding five years, in the discretion of the court. NOT INDICTABLE PRIOR TO ACT.-Before the passage of this statute, in 1879, incest was not indictable in this state. Keesler, 78-469.

INDICTMENT-ILLEGITIMATE CHILD-VARIANCE.-Where the indictment charges that defendant had carnal intercourse with his "daughter," and the proof is that the person alleged to be the daughter is defendant's illegitimate child, there is no variance, and defendant is guilty. Lawrence, 95659.

Where a wife, on threats of her husband to leave her, confessed to having committed incest, such confession being a confidential communication, is inadmissible, and its subsequent repetition to a third person under similar circumstances, in the presence of the husband, is incompetent on the trial of the wife and another for incest. Brittain, 117-783.

Sec. 265 (1061). Incest; carnal intercourse between uncle and niece, nephew and aunt, a misdemeanor. 1879, c. 16, s. 2.

In all cases of carnal intercourse beween uncle and niece, and nephew and aunt, the parties shall be guilty of a misdemeanor, and punished by fine or imprisonment, in the discretion of the court.

INDICTMENT.

See each particular title.

Sec. 266 (1183). Formal objections or stay of judgment shall not qash indictments, informations and impeachments. R. Č., c. 35, s. 14. 37 Hen. VIII., c. 8. 1784, c. 210, s. 2. 1811, c. 809.

Every criminal proceeding by warrant, indictment, information, or impeachment, shall be sufficient in form for all intents and purposes, if it express the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill or proceeding sufficient matter appears to enable the court to proceed to judgment.

TRIAL BEFORE TWO JUSTICES.-An indictment for perjury alleged to have been committed at a trial in a justice's court can not be quashed because the names of the justices are given in addition to the name of the court, since the addition is mere harmless surplusage. Flowers, 109-.

FORM OF INDICTMENT WHEN STATUTE AMENDED SINCE THE COMMISSION OF THE OFFENCE.-When material parts of a statute are repealed by a subsequent amendatory statute, an indictment for an offence committed before the amendment made should charge that the offence was committed before the date of the ratification of the amendatory act. Massey, 97— 465.

CAPTION. A misrecital of the proper county in the caption of an indictment furnishes no ground for arrest of judgment. Sprinkle, 65— 463.

THE WORD "COUNT" USED FOR "COUNTY."-Where the indictment says defendant is of a certain county, and that he committed the offence in the "count" aforesaid, the word "count" may be read county, since the informality is cured by the statute. Evans, 69-40.

DESCRIPTIO PERSONAE.-The addition of "Jr." to a name in an indictment is mere descriptio personae, and it is not a variance for the name to be stated in the evidence without the addition. Best, 108-747.

ACT OF ASSEMBLY.-An indictment concluding against the "act of assembly," is sufficient. Tribatt, 32 (10 Ired.), 151.

TITLE OF ACTION.-A criminal action may be entitled on the records of the court either as "The People v. A B-Criminal action," or the "State v. H B-Indictment." Simons, 68-378.

CONCLUSION AGAINST THE "FORCE" OF STATUTE.-An indictment concluding against the "force" instead of the "form" of the statute is sufficient. Davis, 80-384.

CONCLUSION OF INDICTMENT.-An indictment, whether for a common law or a statutory offence, which does not conclude "against the peace and dignity of the state," is fatally defective. Overruled in State v. Kirkman, 104-911. Joyner, 81-534.

It is not necessary that an indictment should conclude "against the peace and dignity of the state." Overruling State v. Joyner, 81-534, on this point. Kirkman, 104-911.

OBJECT OF THE STATUTE.-This section was intended to uphold the execution of public justice by freeing the courts from the fetters of form, technicality and refinement which do not concern the substance of the charge and the proof to support it. Barnes, 122-1031.

The omission of the words "with intent" in an indictment for assault with intent to commit rape is not ground for arrest of judgment where the other usual averments are used. Barnes, 122-1031.

Where an act is made an offence by statute, without reference to the intent, a charge in an indictment that it was wilfully done is surplusage, and the intent need not be proved. Railway, 122-1052.

An indictment for perjury must allege that it was done feloniously. Bunting, 118-1200.

An indictment concluding "against the peace and dignity," omitting the words "of the state," is sufficient, since the defect is cured by the statute. Parker, 81--531.

ONE SECTION OF STATUTE USING GENERAL TERMS AND ANOTHER SPECIFIC.Where an offence is prohibited in general terms in one section of the statute, and in another and entirely distinct section the acts of which the offence consists are specified, it is not necessary that anything but Van Doran, the general description should be set out in the indictment.

Where a statute makes two or more distinct acts, constituting separate stages of the same transaction, indictable, both or all may be charged in a single count of the indictment. Van Doran, 109—.

But if the distinct acts, representing the successive stages of the transaction, are connected in the statute by the word "or," the independent clauses may be coupled by the word "and," instead of following closely the language of the statute and using the disjunctive "or." Van Doran, 109-.

The use of the disjunctive "or" is only fatal when the use of it renders the statement of the offence uncertain, but it is not so when one term is used only as explaining or illustrating the other, or where the language of the statute makes either an attempt or procurement of an act, or the act itself, in the alternaive, indictable. Van Doran, 109-.

FELONIOUSLY.-The word "feloniously" must always be used in indictments for felonies. Purdie, 67-25.

Sec. 267 (1184). Substance of proceedings to be set forth in indictments, etc. R. C., c. 35, s. 15.

In every indictment, information, or impeachment in which, by the common law, it may be necessary to set forth at length the judicial proceedings had in any case then or formerly pending in any court, civil or military, or before any justice of the peace, it shall be sufficient to set forth the substance only of said proceedings, or the substance of such part thereof as make, or help to make, the offence prosecuted.

Sec. 268 (1187). Indictment for second offence; how first conviction to be stated. R. C., c. 35, s. 18.

In any indictment for an offence which, on the second conviction thereof, is punished with other or greater punishment than on the first conviction, it shall be sufficient to state that the offender was, at a certain time and place, convicted thereof, without otherwise describing the previous offence; and a transcript of the record of the first conviction, duly certified, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction.

Sec. 269 (1188). Indictment; how stated; when ownership of property is held in common. R. C., c. 35, s. 19.

If any indictment wherein it shall be necessary to state the ownership of any property whatsoever, whether real or personal, which shall belong to, or be in the possession of more than one person, whether such persons be partners in trade, joint-tenants or tenants in common, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as the case may be; and whenever, in any such indictment, it shall be necessary to mention,

for any purpose whatsoever, any partners, joint-tenants or tenants in common, it shall be sufficient to describe them in the manner aforesaid; and this provision shall extend to all joint stock companies and trustees.

FATAL VARIANCE.-Where the indictment charges the injury of a cow, the property of L S and others, and the proof is that L S is the exclusive owner, the variance is fatal. Hill, 79-656.

VARIANCE NOT FATAL.-Where property is charged in an indictment for larceny as belonging to A and another and it is proved on the trial to be the property of A and B, a firm well-known in the community, the apparent variance is cured by this act. Capps, 71-93.

USING THE DISJUNCTIVE "OR."-An indictment for larceny which charges the thing taken to be the property of "J D R and another or others," is fatally defective. Harper, 64-129.

Sec. 270 (1189). Indictment, certain defects of, not to vitiate. R. C., c. 35, s. 20.

No judgment upon any indictment for felony or misdemeanor, whether after verdict, or by confession, or otherwise, shall be stayed, or reversed for the want of the averment of any matter unnecessary to be proved, nor for the omission of the words "as appears by the record," or of the words "with force and arms," nor for the insertion of the words "against the form of the statutes," instead of the words "against the form of the statute," or vice versa; nor for omission of the words "against the form of the statute," or "against the form of the statutes," nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed. on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened; nor for want of a proper and perfect venue, when the court shall appear by the indictment to have had jurisdiction of the offence.

A defect in an indictment for homicide in stating that deceased died in a certain year, when, in fact, he died the year before, is cured by the statute. Jones, 80-415.

The omission of the word "year” in an indictment for the removal of a crop where the renting is charged to have been "for the term of one," omitting the word "year," does not vitiate the indictment. Walker, 87— 541.

It is not necessary that an indictment should conclude "against the peace and dignity of the state." Overruling State v. Joyner, 81 N. C., 534, on this point. Kirkman, 104-911.

A conclusion against the form of the statue instead of statute is no ground for arrest of judgment. Smith, 63-234.

Laws conferring, withdrawing or limiting jurisdiction over preexisting common law offences do not become a constituent part of the offences to which they apply, and indictments under such statutes need not conclude against the form of the statute. Williamson, 81-540.