State v. . Lancaster, 84 S.E. 529

84 S.E. 529 | N.C. | 1915

The defendants were indicted for an affray. The indictment charged that the defendants "did willfully and unlawfully assemble together, and did mutually assault and beat each other, Richard Parker by using language calculated and intended to bring on a fight and a fight ensuing, and James Lancaster using a deadly weapon, towit, a gun, and to, with, and against each other in a public place did fight and make an affray," etc.

The court, on its own motion, quashed the indictment as to Parker and dismissed the action as to him, from which decision the State appealed. Revisal, 3276 (3).

In S. v. Fanning, 94 N.C. 940, the defendants were indicted for an affray, and it was held that if a person by such abusive language (285) or offensive conduct towards another as is calculated and intended to bring on a fight induces that other to strike him, he is guilty, although he did not return the blow. To same purport, S. v.Davis, 80 N.C. 351; S. v. Robbins, 78 N.C. 431; S. v. Downing, 74 N.C. 184;S. v. Perry, 50 N.C. 9. Here the charge is, "Did mutually assault and beat each other."

In S. v. Griffin, 125 N.C. 692, it was held that the place need not be charged nor proven. The form of the indictment is sufficient. Revisal, 3254, 3255.

His Honor seems to have been of the opinion that the defendant Parker could not be tried for the affray in the Superior Court, because he did not use a deadly weapon. In S. v. Coppersmith, 88 N.C. 614, it is held: "An affray is cognizable in the Superior Court as to both defendants where it appears that a deadly weapon was used by either." This has been cited and approved, S. v. Albertson, 113 N.C. 634. To same effect, S. v. Ray,89 N.C. 587, and cases cited to that case and to S. v. Ray in the Anno. Ed.

If Parker, not having used a deadly weapon, had been convicted or acquitted before a justice of the peace, this would have been a full defense as to him (S. v. Fagg, 125 N.C. 609), but this could not appear on a motion to quash.

The judgment quashing the bill as to the defendant Parker is

Reversed.

Cited: S. v. Dockery, 171 N.C. 829; S. v. Lemons, 182 N.C. 830; S.v. Strickland, 192 N.C. 256; S. v. Robinson, 213 N.C. 280.