174 S.E. 288 | N.C. | 1934
Criminal prosecution tried upon indictment charging the defendant with an assault upon Sam Wall in a secret manner, with a deadly weapon, with intent to kill, in violation of C.S., 4213.
On the evening of 25 November, 1933, the defendant and one Emmit Hodge were fussing with each other in front of Woodard's store on the Pool Road about eight miles from Raleigh, when Sam Wall came up and remonstrated with the defendant, in consequence of which the defendant struck Wall with his fist and knocked him against an automobile.
The defendant then went to his home, got his gun, and in two or three hours returned to Woodard's store. The gun was not loaded. The defendant contends that he took it, at the suggestion of his wife, only for the appearance of protection. He had failed to get some groceries for which he was returning. The State's evidence is to the effect that the defendant called Wall from Woodard's store and struck him over the head with the barrel of his gun, inflicting serious injury. The defendant. *473 testified that Wall was approaching him with an open knife and that he struck him with the gun barrel only in self-defense.
The court directed a nonsuit on the charge of secret assault (S. v.Oxendine,
Verdict: "Guilty of assault with deadly weapon and asks mercy of the court."
Judgment: Twelve months on the roads. The evidence discloses, first, a simple assault when neither the defendant nor the prosecuting witness was armed with a deadly weapon, then, later, an assault with a gun. The defendant contended that all he did in the second encounter was to defend himself.
In this state of the record, the court should have submitted for the jury's consideration the question of simple assault. S. v. Merrick,
While the first affray, in which no deadly weapons were used, may have been the cause of the second and more serious one (S. v. Bailey,
For the error as indicated, a new trial must be awarded. It is so ordered.
New trial. *474