Madison County NcArchives Court.....Andrew Rucker, State V. 1873
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Connie Ardrey n/a November 10, 2011, 9:37 am

Source: N C Reports
Written: 1873

State v. Andrew Rucker

The word "feloniously" is absolutely necessary in every indictment chargina 
felony, and it cannot be dispensed with or its use supplied by any 
circumlocution.

Indictment for Murder, tried before Henry, J., at the Fall Term, 1871, of the 
Superior Court of Madison County. (The continuance of the case in this Court 
was owing to a diminution of the record, which was supplied by a certiorari.)

The prisoner was charged in the bill of indictment, containing one count, with 
the murder of one Miza Wilson. The charge as made was, that the prisoner, with 
a certain rock, a deadly weapon, "wilfully, deliberately and of his malice 
aforethought, in and upon the head of her, the said," &c., with a repetition 
of the same words in a subsequent part of the indictment, charging the murder.

The objection of the validity of the indictment is set out in the opinion of 
the Court; and as that was the material point made here, a statement of the 
evidence and of the exceptions taken by the prisoner's counsel upon the trial 
below becomes unnecessary.

The jury returned a verdict of guilty. Motion for a venire de novo; motion 
refused. Judgment and sentence of death. Prisoner appealed.

Jones & Jones, for the prisoner.
Attorney General Hargrove, for the State.

NC Supreme Court Justice Settle, J. - The record discloses a murder shocking 
in its details, and the confessions of the prisoner, together with the 
corroborating evidence, fully warranted the jury in finding him guilty. But 
the bill of indictment is not only informal in many respects, but fatally 
defective.

Neither the word feloniously nor the word felony is to be found in the bill of 
indictment from the beginning to the end, and it is common learning, too plain 
to need citation of authority for its support, that the word feloniously is 
absolutely necessary in every indictment charging a felony, and it cannot be 
dispensed with or its use supplied by any circumlocution.

It is as necessary in an indictment charging a felony as the word heirs is in 
a deed conveying a fee simple.

It follows that the judgment must be arrested, and that the prisoner upon this 
indictment is entitled to go without day. But as his life, in consequence of 
this fatally defective bill, has never been in jeopardy, there is nothing to 
prevent another bill being sent and a further prosecution for the murder.

Let this be certified.
Per Curiam.
Judgment accordingly.

Additional Comments:
In the NC Supreme Court January Term 1873

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