"An exception that there is not sufficient evidence to go to the jury must always be made before verdict, in order that the defect can be supplied if possible"; for the sole object of judicial investigation is to ascertain the truth of the matter at issue. Sutton v. Walters, 118 N.C. 495;Holden v. Strickland, 116 N.C. 185; S. v. Hart, ib., 976; S. v.Kiger, 115 N.C. 746; Cotton Mills v. Cotton Mills, ib., 475; S. v.Varner, ib., 744; Fagg v. Loan Association, 113 N.C. 364; McMillan v.Gambill, 106 N.C. 359; S. v. Brady, 104 N.C. 737; Battle v. Mayo,102 N.C. 413, 438; Sugg v. Watson, 101 N.C. 188; Lawrence v. Hester, 93 N.C. 79; S. v. Glisson, ib., 506; S. v. Keath, 83 N.C. 626;S. v. Jones, 69 N.C. 16. The matter seems adjudicated and is decisive of this case.
It is true that exceptions for error in the charge may be taken, specifically, if made within ten days after the adjournment of the court,Lowe v. Elliott, 107 N.C. 718; S. v. Varner, 115 N.C. 744; Blackburn v. Ins. Co., 116 N.C. 821; Clark's Code, (2nd Ed.), p. 383, (579) but it is otherwise as to exceptions for omissions to charge, S. v. Groves, 119 N.C. 822; Clark's Code (2nd Ed.), p. 382, and permitting the case to go to the jury on insufficient testimony, since these matters must be called to the attention of the court before verdict, that the defect may be cured by calling other witnesses or by charging upon the omitted points. It may be noted that the third head note in S. v. Hart,116 N.C. 976, is misleading by reason of this distinction having been overlooked by the reporter. But even if the exception in this case had been taken in apt time, it could not have availed the defendant. The Judge correctly charged that "if the assault was made from behind and in such a manner as to prevent the prosecutor from knowing who his assailant was, and that the blow was about to be stricken, it was a secret assault," S. v.Jennings, 104 N.C. 774, and the evidence fully authorized the charge. S.v. Jennings has been cited and approved in S. v. Patton, 115 N.C. 753; S.v. Shade, ib., 757; S. v. Gunter, 116 N.C. 1068. Attempts to commit any of the four capital offences were formerly felonies, but during the prosecution for "Kuklux" troubles the offence of assault with intent to commit murder was reduced to a simple misdemeanor. The Act of 1887, Ch. 32, restored the grade of the offence to a felony, except in those cases in which it is committed openly, giving the assailed an opportunity to know his assailant. S. v. Telfair, 109 N.C. 878.
No error.
Cited: S. v. Furr, 121 N.C. 608; S. v. Wilson, ib., 657; S. v.Huggins, 126 N.C. 1056; S. v. Williams, 129 N.C. 582; S. v. Jarvis,ib., 699; Hart v. Cannon, 133 N.C. 14; S. v. Holder, ib., 712; PrintingCo. v. Herbert, 137 N.C. 319; Jones v. High Point, 153 N.C. 373; S. v.Whitfield, ib., 628; S. v. Houston, 155 N.C. 433; S. v. Hawkins, ib., 473; S. v. Leak, 156 N.C. 646; Riley v. Stone, 169 N.C. 424.
(580)