#### STATE *vs*ISAAC MORRISON.

Where an indictment charges a rescue, and also an assault and battery, and the defendant is convicted generally; if the averments as to the rescue are uncertain or bad, these may he rejected as superfluous and' immaterial, and the Court may proceed to pass judgment upon the verdict as for an assault and battery.

This was an appeal from the judgment of the Superior Court of Law of Macon County, at Fall Term, 1841, his Honor Judge Manly presiding.

The indictment against the defendent was in the following words, viz:

“State of North Carolina,') Superior Court ofLaw,. Macon County. J ’ Fall Term, 1839.

The Jurors for the State upon their oath present, that Wil-*10Ham Stalcup is one of the constables of the County of Macon, and that John Wilson is one of the Justices of the Peace for said County, and that the said John Wilson, so being one of the Justices of tbe Peace of said County, on the 20th day of °ms°n‘*May, in the year A. D. 1839, did duly issue an execution to any lawful officer of said County, and the said execution being directed and delivered to the said William Stalcup by the said John Wilson, Justice as aforesaid, and he, the said Justice, having competent power and authority to issue said execution, and the said William Stalcup, by virtue of the said execution, commanding him to execute and sell as much of the goods and chattels of the said Isaac Morrison as will make the sum of twenty-nine dollars principal, and ninety-four cents interest, and forty cents costs, did seize and take iuto his possession, by virtue of the aforesaid execution, one sorrel Stud Horse, the property of the said Isaac Morrison, on the 20th day of May, A. D, 1839, and the Jurors aforesaid, upon their oath aforesaid, do further present that, the said William Stalcup, so being in the lawful possession of the horse aforesaid, by virtue of his office, and the aforesaid execution, on the twenty-first day of May, in the year of our Lord one thousand eight hundred and thirty-nine, the said Isaac Morrison, in the[Counfy aforesaid, on the day and year last aforesaid, with force and arms, in the County aforesaid, in and upon the said William Stalcup, there and then being constable as aforesaid, and then and there lawfully having the said horse aforesaid in his custody, by virtue of the said execution, for the cause aforesaid, in the due execution of his office then and there1 being, did make an assault, and him, the said William Stalcup,. then and there did beat, and bruise, and ill-treat, to his great damage, and the-said Isaac Morrison took the said sorrel Stud Horse out of the custody of the said William Stalcup, and against the will of him, the said William Stalcup, then and there unlawfully and forcibly did rescue and take from and out of the- possession of the said William Stalcup, and against the- will of him, the said William Stalcup, there and then unlawfully and forcibly did rescue, to the great hindrance of public justice, in contempt of the laws of the State, to the evil example of all others in like *11cases offending, and against the peace and dignity of the State.”

J. W. GÜIN, *Tolr.*

The defendant having appeared at Fall Term, 1841, moved to quash the indictmont, which motion was He then entered the plea of not Guilty; and the Jury found him “guilty in manner and form as charged in the Bill of indictment.” The defendant’s counsel then moved in arrest of judgment, which motion was also overruled, and the Court proceeded to pass judgment, from which the defendant appealed to the Supreme Court.

For the State, *J. W. Bynum,*Solicitor for the 7th Circuit, who, by appointment of the Court, attended to the business of the State at this Term, in the absence of the Attorney General, detained from the Court by indisposition.

No counsel for the defendant.

Gaston, J.

The only question presented in this case is, whether the indictment be sufficient in law to warrant the judgment which has been pronounced upon it. The aver-ments in the indictment, with respect to the issuing by the magistrate, and the delivery to the constable, of the execution, under which the defendant’s horse was seized, and which horse he is charged to have forcibly rescued, are not set forth with critical precision; but whéther, on that account, these averments are uncertain and bad, it is unnecessary for us to consider. For, if they be, the indictment nevertheless contains a distinct charge of assault and battery, to which no exception can be taken. The verdict finds the defendant guilty in manner and form as charged in the indictment, and, of consequence, guilty of the assault and battery therein contained. If all the averments so questioned be as exceptionable as is supposed, they may be rejected as superfluous and immaterial, and enough will remain to warrant the judgment.

This opinion must be certified to the Superior Court of Macon.

Per Curiam.

Ordered accordingly.