State v. Albarty

76 S.E.2d 381 (1953)

238 N.C. 130

STATE v. ALBARTY.

No. 723.

Supreme Court of North Carolina.

June 12, 1953.

*382 Harry McMullan, Atty Gen., and J. W. Bruton, Asst. Atty. Gen., for the State.

Buford T. Henderson, Winston-Salem, for defendant, appellant.

ERVIN, Justice.

There can be no valid trial, conviction, or punishment for a crime without a formal and sufficient accusation. 42 C. J.S., Indictments and Informations, § 1. As a consequence, it is impossible to overmagnify the necessity of observing the rules of pleading in criminal cases.

The first rule of good pleading in criminal cases is that the indictment or other accusation must inform the court and the accused with certainty as to the exact crime the accused is alleged to have committed. State v. Cole, 202 N.C. 592, 163 S.E. 594; State v. Carlson, 171 N.C. 818, 89 S.E. 30; State v. Greene, 151 N.C. 729, 66 S.E. 564; State v. Lunsford, 150 N.C. 862, 64 S.E. 765; State v. Hill, 79 N. C. 656.

The language of the criminal complaint underlying the original warrant discloses that it was intended to be drawn under G.S. § 14-291.1, which makes it a misdemeanor for any person to "sell, barter *383 or cause to be sold or bartered, any ticket, token, certificate or order for any number or shares in any lottery, commonly known as the numbers or butter and egg lottery, or lotteries of similar character, to be drawn or paid within or without the state".

The words "barter" and "sell" are not used in this statute as synonyms. "Barter' is a contract by which parties exchange one commodity for another. It differs from a sale, in that the latter is a transfer of goods for a specified price, payable in money." 5 Words and Phrases, Barter, p. 194. Speigle v. Meredith, 22 F.Cas.No.13,227, page 910; Hatfield v. State, 9 Ind.App. 296, 36 N.E. 664. See, also, in this connection: Duke v. State, 146 Ala. 138, 41 So. 170; Coker v. State, 91 Ala. 92, 8 So. 874; Gunter v. Leckey, 30 Ala. 591; Forkner v. State, 95 Ind. 406; Westfall v. Ellis, 141 Minn. 377, 170 N.W. 339; Stone v. Rogers, 186 Miss. 53, 189 So. 810; J. I. Case Threshing Mach. Co. v. Loomis, 31 N.D. 27, 153 N.W. 479; Jenkins v. Mapes, 53 Ohio St. 110, 41 N.E. 137; Sturgill v. Lovill Lumber Co., 132 W.Va. 172, 51 S.E.2d 126. This being so, an accused may violate G.S. § 14-291.1 in four distinct ways. He may sell the illegal articles, or he may barter them, or he may cause another to sell them, or he may cause another to barter them.

The criminal complaint involved in this action is drawn in the alternative or the disjunctive rather than the conjunctive, and charges the defendant with violating the statute by selling the illegal articles, or by bartering them, or by causing another to sell them, or by causing another to barter them, leaving the exact accusation against him shrouded in uncertainty. In so doing, the criminal complaint offends the first rule of good pleading in criminal cases. It is well settled "that an indictment or information must not charge a person disjunctively or alternatively in such manner as to leave it uncertain what is relied on as the accusation against him. Two offenses cannot, in the absence of statutory permission, be alleged alternatively in the same count. As a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative". 42 C.J.S., Indictments and Infomations, § 101. See, also, in this connection: State v. Williams, 210 N.C. 159, 185 S.E. 661; State v. Harper, 64 N.C. 129; United States v. Buckner, 2 Cir., 118 F.2d 468; Price v. United States, D.C., 11 F.2d 283; United States v. Dedof, D.C., 42 F. Supp. 57; Isom v. State, 71 Ga.App. 803, 32 S.E.2d 437; Powell v. State, 196 Miss. 331, 17 So. 2d 524; State v. Jefferson, 23 A.2d 406, 19 N.J.Misc. 678; Brown v. State, 139 Tex.Cr.R. 332, 140 S.W.2d 449; State v. Kitzerow, 221 Wis. 436, 267 N.W. 71. We deem it advisable to observe that the criminal complaint falls short of the rules of pleading in another aspect. It does not describe the character of the lottery with definiteness. President v. State, 83 Ga.App. 731, 64 S.E.2d 596.

The verdict must be interpreted in the light of the criminal complaint because the jury found "the defendant guilty of lottery as charged in the warrant." When this is done, it appears that the jury made this anomalous finding: That the defendant is guilty of selling lottery tickets, or that the defendant is guilty of bartering lottery tickets, or that the defendant is guilty of causing another to sell lottery tickets, or that the defendant is guilty of causing another to barter lottery tickets. This being true, the verdict is invalid for uncertainty. It is not sufficiently definite and specific to identify the crime of which the defendant is convicted. State v. Williams, supra. In consequence, it will not support a judgment. State v. Lassiter, 208 N.C. 251, 179 S.E. 891; State v. Snipes, 185 N.C. 743, 117 S.E. 500. While the defendant did not question the validity of the criminal complaint by a motion to quash the warrant or a motion in arrest of judgment, he did challenge the sufficiency of the verdict to support the judgment by an exception to the denial of his motion to set aside the verdict and an exception to the judgment itself. State v. Snipes, supra.

Since the judgment is not supported by the verdict, the judgment and the verdict are set aside, and the cause is remanded *384 to the Superior Court of Forsyth County for further proceedings conforming to law.

We refrain from expressing any opinion upon the question of the constitutionality of the statutes extending the territorial jurisdiction of the Municipal Court of the City of Winston-Salem. This course is in keeping with the settled practice that courts do not pass on constitutional questions until the necessity for so doing has arisen. State v. Wilkes, 233 N.C. 645, 65 S.E.2d 129; Horner v. Chamber of Commerce, 231 N.C. 440, 57 S.E.2d 789.

New trial.