Opinion
June Term, 1853.
1. The wearing or carrying about the person, or keeping in the house by a free Negro any one of the articles prohibited by the act of 1840, chapter 40 (as a rifle, musket, bowie-knife, etc.), is a distinct offense, and should be so charged in the bill of indictment.
2. But where the indictment charged, in the same count, the carrying of a "musket, rifle, and shot-gun," proof of the unlawful carrying of either one of the articles, is sufficient to justify a conviction; and the objection to the indictment cannot be taken advantage of, either at the trial, or upon a motion in arrest of judgment.
(The case of S. v. Haney, 19 N.C. 390, cited and approved.)
THE defendant was indicted under the act of Assembly prohibiting free persons of color from wearing or carrying arms about their persons. The indictment charged that he carried about his person a rifle, a musket, and a shot-gun; and the proof was that he carried a shot-gun.
Attorney-General for the State.
Troy and D. Reid for defendant.
Upon the trial, before his Honor, Judge Dick, at ROBESON, on the last Spring Circuit, it was insisted for the defendant that he could not be convicted unless he carried all the arms charged in the bill of indictment; but his Honor being of opinion that he could be convicted upon proof that he carried either of them, so charged the jury; and upon a verdict and judgment accordingly against the defendant, he appealed to the Supreme Court.
The act of 1840, chapter 30, on which the defendant was indicted, declares, that "if any free Negro, mulatto, or free person of color shall wear, or carry about his or her person, or keep in his or her house any shot-gun, musket, rifle, pistol, sword, dagger, or bowie-knife, unless he or she shall have obtained a license therefor (206) from the Court of Pleas and Quarter Session of his or her county, within one year next preceding the wearing, keeping, or carrying thereof, he or she shall be guilty of a misdemeanor, and may be indicted therefor." We think it clear that the wearing, carrying about the person, or keeping in the house any of these prohibited articles is a distinct offense, and ought to be so charged in the bill of indictment, and proved on the trial. Whether the charging of two or more of them in the same count is bad for duplicity, so that the defendant might have objected to it on special demurrer, or had it quashed on motion, it is unnecessary for us to decide in this case, as no such demurrer was put in, or motion made. We are of opinion that the objection came too late at the trial; that proof of the unlawful wearing, carrying, or keeping any one of the articles was sufficient to justify the conviction of the defendant as to that one, and that it was unnecessary to prove all, as charged. The objection is equally unavailing on a motion in arrest of judgment, or upon a writ of error. Arch. Crim. Pl., 55; S. v. Haney, 19 N.C. 390. The judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: S. v. Bishop, 98 N.C. 773; S. v. Shoemaker, 101 N.C. 689; S. v. Van Doran, 109 N.C. 867; S. v. Burnett, 142 N.C. 580; S. v. Jarrett, 189 N.C. 519.