State v. Fowler

146 S.E.2d 418 (1966)

266 N.C. 528

STATE of North Carolina v. Frank FOWLER.

No. 257.

Supreme Court of North Carolina.

February 4, 1966.

*419 Atty. Gen., T. W. Bruton, Deputy Atty. Gen., Harrison Lewis, and Trial Attorney J. B. Hudson, Raleigh, for the State.

George J. Miller, Charlotte, for defendant appellant.

PARKER, Justice.

In North Carolina the crime of false pretense is statutory, G.S. § 14-100, and the statute specifically states the crime is a felony. State v. Davenport, 227 N.C. 475, 495, 42 S.E.2d 686, 700.

The indictment in the instant case purports to charge defendant with the crime of false pretense as defined in G.S. § 14-100, yet the indictment contains no where in *420 it the word feloniously. We have held repeatedly that indictments charging felonies which omit the word feloniously are fatally defective, unless the General Assembly otherwise expressly provides, and the judgment must be arrested. State v. Jesse, 19 N.C. 297; State v. Purdie, 67 N.C. 26; State v. Rucker, 68 N.C. 211; State v. Caldwell, 112 N.C. 854, 16 S.E. 1010 (a false pretense case); State v. Callett, 211 N.C. 563, 191 S.E. 27; State v. Whaley, 262 N.C. 536, 138 S.E.2d 138; State v. Price, 265 N.C. 703, 144 S.E.2d 865.

Defendant made no motion in the trial court or in the Supreme Court to arrest the judgment in the instant case because the indictment is fatally defective, in that it omits the word feloniously.

The indictment is a part of the record proper. The court cannot properly give judgment unless it appears in the record that an offense is sufficiently charged. It is the duty of this Court to look through and scrutinize the whole record, and if it sees that the judgment should have been arrested, it will ex mero motu direct it to be done. This Court ex mero motu takes notice of the fatally defective indictment in the instant case, and orders that the judgment of imprisonment in the instant case be arrested. State v. Strickland, 243 N.C. 100, 89 S.E.2d 781; State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Scott, 237 N.C. 432, 75 S.E.2d 154.

The indictment on its face is void, and the judgment is arrested. The legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment below, and the State, if it is so advised, may proceed against the defendant upon a sufficient bill of indictment. State v. Rucker, supra; State v. Caldwell, supra; State v. Callett, supra; State v. Scott, supra; State v. Faulkner, 241 N.C. 609, 86 S.E.2d 81; State v. Strickland, supra; State v. Whaley, supra; 21 Am.Jur.2d, Criminal Law, § 524.

Judgment arrested.