#### STATE v. HALLIE SCOTT.

(Filed 25 March, 1953.)

*X.*Crinminal Law §§ 56, 67a—

Motion for arrest of judgment for defect appearing upon the face of the record proper may be made in the Supreme Court on appeal, and even in the absence of such motion, the Supreme Court will examine the whole record and arrest the judgment *eco mero motu*for such defect.

2. Criminal Law § 56—

A motion for arrest of judgment must be based upon matter appearing-in the record, or upon an omission from the record of some matter which should appear therein.

3. Same: Indictment and Warrant § 9—

The indictment charged defendant with assault upon “George Rogers” in one place and upon “George Sanders” in another. *Held:*The indictment on its face is void, and the judgment is arrested, vacating the verdict and sentence entered thereon.

Appeal by defendant from *Sharp, Special Judge, at*September Term, 1952, of CRAVEN.

Criminal prosecution upon a bill of indictment properly found by the grand jury at the September Term, 1952, of the Superior Court charging that the defendant Hallie Scott, on 19 July, 1952, did unlawfully, willfully and feloniously assault George Rogers with a deadly weapon, to wit, a pistol, with felonious intent to kill and murder the said George Sanders, inflicting serious injuries not resulting in death upon the said George Sanders. On the back of the bill of indictment George Rogers was listed *433as a State’s witness. Tbe name of George Sanders does not appear on tbe back of tbe bill of indictment as a State’s witness.

Tbe defendant entered a plea of not guilty, and upon'trial tbe jury returned for tbeir verdict that tbe defendant is guilty of an assault with a deadly weapon. Tbe court sentenced tbe defendant to serve 18 months upon tbe public roads. Tbe defendant assigned as error tbe action of tbe court in entering tbe above judgment. Tbe record proper was filed in this Court, but there is no statement of tbe case on appeal, nor any brief for tbe defendant. In this Court tbe defendant moves in arrest of judgment on tbe ground that tbe indictment is void.

*Attorney-General McMullan and Assistant Attorney-General Bruton for the State.*

PabKER, J.

It is well settled that a motion for tbe arrest of a judgment of tbe Superior Court in a criminal action tried in that court may be made in tbe Supreme Court. It is tbe duty of this Court to examine tbe whole record, and if it sees that tbe judgment should be arrested, it will *ex mero motu*direct that it be done. Tbe motion must be based upon matter appearing in tbe record, or upon an omission from tbe record of some matter which should appear therein. *S. v. Baxter,*208 N.C. 90, 179 S.E. 450; *S. v. Billiard,*223 N.C. 446, 27 S.E. 2d 85; *S. v. McKeon,*223 N.C. 404, 26 S.E. 2d 914; *S. v. Johnson,*226 N.C. 266, 37 S.E. 2d 678; *S. v. Foster,*228 N.C. 72, 44 S.E. 2d 447. A valid indictment is an essential of jurisdiction. *S. v. Morgan,*226 N.C. 414, 38 S.E. 2d 166; *S. v. Jones,*227 N.C. 94, 40 S.E. 2d 700.

At common law it is of vital importance that tbe name of tbe person against whom tbe offense was directed be stated with exactitude. 27 Am. Jur., Indictments and Informations, Sec. 80, and cases cited. “A variance ... in tbe name of the person aggrieved is much more serious than a mistake in tbe name ... of tbe defendant, as tbe latter can only be taken advantage of by tbe plea in abatement, while tbe former will be ground for arresting tbe judgment when tbe error appears on tbe record, or for acquittal, when a variance arises on tbe trial.” Wharton’s Criminal Procedure, 10th Ed., Yol. 1, Indictment, Sec. 158.

In *S. v. Henderson,*68 N.C. 348, tbe victim was described in tbe indictment as N. S. Jarrett and also as Nimrod S. Jarrett. Tbe Court stated in that case that this was an informality in setting forth tbe name of tbe person injured, since it is a common practice with most persons to write tbeir Christian names sometimes in full and sometimes by the initials only. Tbe Court further stated “we are well aware that tbe English authorities have not gone to this extent.” This case is clearly not in point. *Ruffin, G. J.,*says for tbe Court in *S. v. Angel,*29 N.C. 27: “The pur*434pose of setting forth the name of the person who is the subject on which an offense is committed is to identify the particular fact or transaction on which the indictment is founded, so that the accused may have the benefit of one acquittal or conviction if accused a second time.”

The indictment in the instant case charges the victim of the assault in one place as George Rogers, and in another place as George Sanders. If this conviction were allowed to stand, and if the defendant was indicted and tried thereafter for an assault upon George Rogers or George Sanders, he could not have the benefit of the conviction on this indictment because it does not state with exactitude the victim.

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 may proceed against the defendant upon a sufficient bill of indictment. *S. v. Sherrill,*82 N.C. 695.

Judgment arrested.