134 S.E. 458 | N.C. | 1926
Lead Opinion
It is provided by C. S., 4213, tbe statute under which the defendants were indicted and convicted, that if any person shall commit an assault and battery upon another (1) maliciously, (2) with a deadly weapon, (3) in a secret manner, by waylaying or otherwise, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, (4) with intent to kill such other person, he shall be guilty of a felony and shall be punishable by imprisonment in jail or in the State’s prison for not less than twelve months nor more than twenty years, or by a fine of not exceeding two thousand dollars, or both, in the discretion of the court.
The prosecuting witness testified that just after dark on the night in question, he was walking along the public highway approximately sixty yards from his home, when, attracted by the growling of his dog, he looked over into the cotton patch by the road and saw the defendant, Ludlow Lee, who had previously been hiding between two rows of cotton, rise from his squatting position, with a shot gun in his hands, and fire directly at the prosecuting witness, inflicting serious and permanent injury by shooting him in the face and shoulders. Immediately thereafter he saw the defendant, Roney B. Lee, who was with Ludlow Lee at the time, and who had also been hiding in the cotton patch, rise up with gun in hand and fire in the air.
The defendants denied having anything to do with the shooting, and introduced evidence tending to show that they were elsewhere at the time.
The evidence was plenary on both sides. It was sufficient on behalf of the State to warrant a conviction, and on behalf of the defendants to warrant an acquittal. The case was peculiarly one for the jury under proper instructions from the court.
All the exceptions are directed to the charge, and while some of his Honor’s expressions, standing alone, may be objectionable, yet, taken as a whole, we are constrained to believe that the charge is free from reversible error.
The charge, as has so often been said, is to be considered contextually and not disjointedly. In re Hardee, 187 N. C., 381; Milling Co. v.
There was a motion, made in this Court, to arrest the judgment because of the alleged insufficiency of the verdict, in that it does not specify of which grade of the offense charged the jury convicted the defendants, it appearing that one of four verdicts was permissible under the indictment, the evidence and the charge of the court, and the jury simply returned a verdict of “guilty.”
The decisions in the several jurisdictions, having statutes similar to ours, C. S., 4640, permitting a conviction of a less degree of the same offense charged in the bill of indictment, when warranted by the evidence, are not in unison. Moody v. State, 52 Tex. Crim. Rep., 232; Kinchen v. State, 188 S. W. (Tex.), 1004; Estes v. State, 55 Ga., 131; Com. v. Flagg, 135 Mass., 545; S. v. Smith, 18 S. C., 149; 27 R. C. L., 856. However, the exact question was decided by this Court in the case of S. v. Barnes, 122 N. C., 1031, and that decision is controlling on the present record. There, Clark, J., speaking for the Court, said: “While the statute (Laws 1885, ch. 68) permits a verdict for an assault when it is embraced in the charge of a greater offense, as rape or other felony, a verdict simply of guilty and not specifying a lower offense is a verdict of guilty of the offense charged in the indictment.”
On authority of the decision in Barnes’ case, the motion in arrest of judgment must be overruled.
No error.
Concurrence Opinion
concurring: The defendants are indicted for a malicious assault committed in a secret manner in breach of C. S., 4213, which reads as follows: “If any person shall in a secret manner maliciously commit an assault and battery with any deadly weapon upon another by waylaying or otherwise, with intent to kill such other person, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, he shall be guilty of a felony and shall be punished by imprisonment in jail or in the penitentiary for not less than twelve months nor more than twenty years, or by a fine not exceeding two thousand dollars, or both, in the discretion of the court.” Section 4214 relates to an assault with a deadly weapon with intent to kill resulting in injury, the language being: “Any person who assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony, and shall be punished by imprisonment in the State prison or be worked on the county roads for a period not less than four months nor more than ten years.” There are other statutes which provide that on a trial for rape, or for other felony, when the crime charged includes an assault against
In tbe present case tbe trial judge instructed tbe jury that they might convict tbe defendants of tbe crime charged in tbe indictment (sec. 4213), or of an assault with a deadly weapon with intent to kill, but not in a secret manner (sec. 4214), or of an assault with a deadly weapon. Tbe jury returned a general verdict of guilty and tbe defendants were sentenced to bard labor in tbe State prison for a term of not less than five and not more than ten years.
In S. v. Barnes, 122 N. C., 1031, tbe defendant was indicted for an assault with intent to commit rape, and on bis appeal tbe Court observed : “While tbe statute permits a verdict for an assault where it is embraced in tbe charge of a greater offense, as rape or other felony, a verdict simply of guilty and not specifying a lower offense is a verdict of guilty of tbe offense charged in tbe indictment.” In the' preceding paragraph of tbe opinion it is said: “There is only one count in tbe indictment, and it is unnecessary to notice tbe authorities cited as to general verdicts rendered on a bill charging offenses punishable differently.”
I do not think that section 4214 can properly be construed as a lesser degree of tbe offense denounced in section 4213, as an assault with a deadly weapon may be, because it is a separate and distinct statutory felony; but, there being only one count in tbe indictment, let me concede that tbe defendants could have been convicted under tbe former section for tbe reason that tbe language of tbe indictment is sufficient to embrace this offense. This granted, I am impressed with tbe expediency and wisdom, if not tbe necessity, of requiring juries in cases of this character to specify tbe particular charge on which tbe verdict is returned. It is tbe better practice, as it makes for certainty and gives assurance to tbe Court. Here tbe punishment prescribed is different in each of tbe three crimes of which tbe defendants may have been convicted: (1) imprisonment in jail or in tbe penitentiary for not less than twelve months nor more than , twenty years, or by a fine not exceeding two thousand dollars, or both, in tbe discretion of tbe court; (2) imprisonment in tbe State prison or to be worked on tbe county roads for a period not less than four months nor more than ten years; (3) fine or imprisonment or both in tbe discretion of tbe court. I do not say that tbe verdict is fatally defective, but I think that under tbe
Lead Opinion
ADAMS, J., concurring. It is provided by C. S., 4213, the statute under which the defendants were indicted and convicted, that if any person shall commit an assault and batter upon another (1) maliciously, (2) with a deadly weapon, (3) in a secret manner, by waylaying or otherwise, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, (4) with intent to kill such other person, he shall be guilty of a felony and shall be punishable by imprisonment in jail or in the State's prison for not less than twelve months nor more than twenty years, or by a fine of not exceeding two thousand dollars, or both, in the discretion of the court.
The prosecuting witness testified that just after dark on the night in question, he was walking along the public highway approximately sixty yards from his home, when, attracted by the growling of his dog, he looked over into the cotton patch by the road and saw the defendant, Ludlow Lee, who had previously been hiding between two rows of cotton, rise from his squatting position, with a shot gun in his hands, and fire directly at the prosecuting witness, inflicting serious and permanent injury by shooting him in the face and shoulders. Immediately thereafter he saw the defendant, Roney B. Lee, who was with Ludlow Lee at the time, and who had also been hiding in the cotton patch, rise up with gun in hand and fire in the air.
The defendants denied having anything to do with the shooting, and introduced evidence tending to show that they were elsewhere at the time.
The evidence was plenary on both sides. It was sufficient on behalf of the State to warrant a conviction, and on behalf of the defendants to warrant an acquittal. The case was peculiarly one for the jury under proper instructions from the court.
All the exceptions are directed to the charge, and while some of his Honor's expressions, standing alone, may be objectionable, yet, taken as a whole, we are constrained to believe that the charge is free from reversible error.
The charge, as has so often been said, is to be considered contextually and not disjointedly. In re Hardee,
There was a motion, made in this Court, to arrest the judgment because of the alleged insufficiency of the verdict, in that it does not specify of which grade of the offense charged the jury convicted the defendants, it appearing that one of four verdicts was permissible under the indictment, the evidence and the charge of the court, and the jury simply returned a verdict of "guilty."
The decisions in the several jurisdictions, having statutes similar to ours, C. S., 4640, permitting a conviction of a less degree of the same offense charged in the bill of indictment, when warranted by the evidence, are not in unison. Moody v. State, 52 Tex.Crim. Rep.; Kinchen v.State, 188 S.W. (Tex.), 1004; Estes v. State,
On authority of the decision in Barnes' case, the motion in arrest of judgment must be overruled.
No error.