The case of S. v. Ives, 13 Ire., 338, cited by the defendant's counsel to show that the second count of the indictment is bad, is in point for that purpose. In such a count there must be an averment of the person from whom the stolen goods were received.
But notwithstanding the validity of this objection, we are unable to see any error on the record which entitles the defendant to an arrest of the judgment. The first count of the indictment is good, and that is sufficient. S. v. Miller, 9 Ire., 275. S. v. McCauless,, (53) 9 Ire., 375; S. v. Williams, 9 Ire., 140. The defendant's counsel admit the propriety of this, as a general rule, but contend that the present case is an exception; because on the trial they requested the judge to instruct the jury that no verdict could be rendered on the second count, and he omitted to do so. But how does this appear? Certainly only by the bill of exceptions, and a motion in arrest of the judgment must be founded on some error apparent on the record proper.
The other objections urged by the counsel are for alleged errors that do appear on the record, and we will proceed to consider and dispose of them.
1. It is said that the two counts are inconsistent, and that though they may, by force of a statute, be joined in the same indictment, yet a general verdict of guilty will be repugnant and void, and no judgment can be rendered on it.
The answer is, that one of the counts is bad, and the verdict and judgment may well be supported on the other. See S. v. Williams, supra.
2. It is urged that as the two counts are permitted to be joined in the same bill of indictment, by statute, each ought to conclude against theform of the statute. The first count is for larceny, which is an offense at common law, and we cannot understand how it can be made a statutable offense merely because the statute has changed the practice by allowing a cognate offense to be joined in the same bill with it.
3. It is objected to the first count that the articles stolen ought to have been charged to have been "of the goods and chattels" of the owner, instead of being his "property." Supposing this to have been a good objection at common law (which we do not admit), it would certainly be cured by our act of Assembly, which declares that no judgment shall be stayed by reason of informality or refinement, if in the bill of indictment "sufficient matter appears to enable the court to proceed to a judgment. Rev. Code, ch. 35, sec. 14. An attempt to distinguish (54) *Page 62 between the expression "of the goods and chattels" of a person, and "the property" of that person, is too much of a refinement for practical use.
It must be certified that there is no error in the record.
PER CURIAM. Ordered to be certified accordingly.
Cited: S. v. Minton, post, 198; S. v. Stroud, 95 N.C. 632; S. v.Smiley, 101 N.C. 711; S. v. Toole, 106 N.C. 740; S. v. Poythress,174 N.C. 813.