dissenting. G.S. 106-283 provides: “It shall be unlawful: a.’ For any person within this State to sell, offer, or expose for 'sale any agricultural or vegetable seed for seeding purposes . . . (3) .having a false or misleading label.”
The bill of indictment with two counts is set forth in the maj ority opinion. The jury acquitted on the -first count, and convicted on the second. Therefore, we are not concerned with the first count. The majority opinion holds that the second -count in the bill should be quashed for two reasons: One. It does not allege a purchaser. Two. It does not allege a fraudulent intent.
The language of the;istatute creating the offense charged in the second count does not require allegation or -proof of a fraudulent "in*519tent to make out the offense prohibited. If the General Assembly had intended to make fraudulent intent as essential element of the offense, it would have said so. For this Court to write such a requirement into. the language of the statute is judicial legislation.
. The. majority opinion states that the second count is defective because it does not name a purchaser, and cites in support of the statement some of our earlier cases, five of which involve the form of an indictment charging the sale of intoxicating liquor prior to G.S. -18-17, one of which holds that where an indictment under the Acts of 1885, Ch. 175, §28, charges a sale by a drummer of' goods, wares and merchandise to have been to two as partners and the proof is a sale to one only the variance is fatal, and another is an indictment for conspiracy in three counts — first for conspiring to commit rape upon F, second the like offense upon E, and third the same upon “certain females to the jurors unknown,” and another deals with the form of an indictment for disposing of mortgaged property.
In an indictment for the unlawful sale of intoxicating liquor, the authorities, in the absence of a statute upon the subject, are so entirely divided on the question as to whether or not the name of the person to whom the sale was made should be alleged that neither side can be said to be supported by a general current of judicial opinion. Black on Intoxicating Liquors, §464; 33 C.J., Intoxicating Liquors, p. 724 — many oases are cited in both text books —; 48 C.J.S., Intoxicating Liquors, p. 448; 30 Am. Jur., Intoxicating Liquors, §316.
The majority opinion states: “Looking at the evidence and not at the indictment, it appears that defendant, a grower, sold to Penn Hardware Company, a seed dealer, tobacco seed which it in turn sold to tobacco farmers.”
■ W. K. Glenn, a witness for the State, testified: “My partners and I, trading as Penn’s Hardware Company, have had' an arrangement with the defendant, Z. R. Bissette, under which we were to sell Bissette’s seeds on consignment. We have sold the seeds on this basis either eight or nine years. We sold some Bissette’s 711 seeds on or about December of 1956 and January 1957.” Later, on redirect examination, Glenn testified: “Bissette’s 711 seed sold for $5.00 per ounce retail. The seed was left to us to sell what we could and return what wasn’t sold. We paid Mr. Bissette for what was sold and we returned any unsold seed.” According to Glenn’s testimony, the defendant shipped Pennis Hardware Company on 3 December 1956 thirty-two ounces of tobacco seed labelled Bissette’s 711, on 24 December 1956 thirty-two ounces of tobacco seed with a similar *520label, and on 7 January 1957 sixteen ounces of tobacco seed with ■a similar label.
I am aware of the rule that the Court in ruling on a motion to quash an indictment is not permitted to consider extraneous evidence, but is restricted entirely to the face of the indictment. S. v. Cochran, 230 N.C. 523, 53 S.E. 2d 663. In order to quash an indictment it must appear from the face of the indictment that no -crime is charged, S. v. Morgan, 226 N.C. 414, 38 S.E. 2d 166; S. v. Gardner, 219 N.C. 331, 13 S.E. 2d 529, or -that the indictment is otherwise so -defective that it will not -support a judgment, S. v. Francis, 157 N.C. 612, 72 S.E. 1041; S. v. Taylor, 172 N.C. 892, 90 S.E. 294; S. v. Gregory, 223 N.C. 415, 27 S.E. 2d 140; S. v. Cochran, supra.
The second count in the indictment charges more than a sale. Conceding for the sake of argument that when a -sale of tobacco seed is -charged the name of the buyer must be alleged, I know of no law, when an article is unlawfully offered and exposed for sale, •that requires the indictment to allege the names of prospective purchasers. The second count in the indictment charges -also the offense of offering and exposing for -sale tobacco seed having a false and misleading label, etc., in the language of the statute prohibiting the offénse.
As a general rule, an indictment is sufficient when it charges the offense in the language of the statute. S. v. Loesch, 237 N.C. 611, 75 S.E. 2d 654; S. v. Gregory, supra; S. v. Gibson, 221 N.C. 252, 20 S. E. 2d 51; S. v. George, 93 N. C. 567; S. v. Stanton, 23 N. C. 424. There are a few exceptions to the rule, S. v. Greer, 238 N.C. 325, 77 S.E. 2d 917, but, in my opinion, they do not embrace that part of the second count in the indictment which charges the defendant “did unlawfully and willfully offer and expose for sale tobacco seed having -a false and misleading label in that said label represented the seed as being Bissette’s 711 when in fact said seed was not Bis-sette’s 711 tobacco seed.”
I vote to overrule the motion to quash the second count in the indictment.