119 S.E. 881 | N.C. | 1923
Criminal action. The defendant was indicted for rape. The jury convicted him of an assault on a female, he being over 18 years of age, and he appealed. When a person is indicted for rape or for any other felony which includes an assault against the person of another, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of an assault if the evidence warrants such finding; and when such verdict is found, the court has power to imprison the defendant for any term allowed by law in case of conviction on an indictment for an assault of like character. C. S., sec. 4639. An assault on a female person by a man or boy over eighteen years old is punishable as a misdemeanor, and all misdemeanors are to be presented or found by the grand jury within two years from the time they are committed and not afterwards. C. S., secs. 4215, 4512.
There was evidence tending to show that the assault of which defendant was convicted was committed more than two years before the prosecution was instituted; and after the verdict was returned, but before judgment was pronounced, the defendant moved the court to arrest the judgment on the ground that the prosecution was barred by the lapse of time. We think his Honor properly denied the motion.
By "arrest of judgment" is meant the refusal of the court to enter a judgment for some cause apparent upon the record, the "case on appeal" not being a part of the record proper. 1 Archbold's Cr. P. and P., 573; 2 Bishop's New Cr. Pro., sec. 1182; Clark's Cr. Pro., 492; S. v. Potter
In S. v. Roberts,
This principle has been maintained with uniformity in many subsequent decisions. S. v. George,
It will be noted that the defendant's motion in arrest is not based upon any error apparent in the record, but upon the testimony of witness tending to show that the offense was committed more than two years before the prosecution was begun. All our decisions are to the effect that this is not a sufficient cause for arresting the judgment of the court. Time is not of the essence of the offense charged in the indictment or of which the defendant was convicted, and this Court has expressly held in such cases that, while the burden is upon the State to show that a misdemeanor was committed within two years before the beginning of the prosecution, the defendant should take advantage of a failure to make such proof by a request to the court for proper instruction to the jury. S. v. Francis,
What we have said disposes of the defendant's further objection that the court failed to instruct the jury as to the statute of limitations. The exception to the judgment is formal and requires no comment.
We have not discussed the question whether the bar of the statute would be available to the defendant upon the indictment and the evidence which was introduced because, as indicated, this defense is not properly presented, and concerning it, it is not necessary to express an opinion. We find no error which entitles the defendant to a new trial.
No error. *485