130 N.C. 655
N.C.
1902
Montgomery, J.

Thеre is only one question involved in this appeal, and that presents no difficulty in its deсision. If *656 tbe bill of indictment be stripped of a balf dozen superfluous words, it will readily be seen upon tbe most casual inspection that tbe offense charged is tbat of a simple assault — a mutual fighting between tbe appellant Battle and tbe other defendant, Powell — occurring during1 tbe September Term, 1901, of Wake Superior Court, аnd within ‍‌‌​​​‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‌​‌‌‌​​​‌‌​‌‌​​​‌​​​‌​​​​‍one mile of tbe courthouse- of tbat county. Tbe jury returned for their verdict tbat tbe defendants were guilty in tbe manner and form as charged in tbe bill of indictment, and tbe Court susрended judgment as to the defendant Powell, and sentenced tbe defendant Battlе to- imprisonment and bard labor upon tbe public roads for sixty days.

Had the Court tbe authority to impose such a sentence — to impose a sentence for more than thirty days imprisonment or a fine of fifty dollars ? Tbat is tbe only question in this appeаl, and tbe answer is, tbe Court did not have tbat power. In cases where no deadly wеapon has- been used and no serious damage done, tbe punishment in assaults, assaults and batteries, and affrays, shall not exceed a fine of fifty dollars or imprisоnment for thirty days. Tbe Code, See. 981; State v. Nash, 109 N. C., 824; State v. Johnson, 94 N. C., 863; State v. Albertson, 113 N. C., 633. Tbe Superior Court, in a case like this one, cоuld not impose a sentence beyond the limit for a simple assault or affray ‍‌‌​​​‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‌​‌‌‌​​​‌‌​‌‌​​​‌​​​‌​​​​‍whеre no- deadly weapon bad been used and no serious damage done when tried before a Justice of tbe Peace. State v. Albertson, supra. Tbe Superior Courts and Courts of Justiсes of tbe Peace have concurrent jurisdiction of such offenses as tbе one charged in tbe bill of indictment. Code; Sec. 892; State v. Bowers, 94 N. C., 910.

Tbe bill of indictment is as follows: “State of North Carolina, Wake County. In tbe Superior Court, September Term, 1901. Tbe jurors for tbе State, ‍‌‌​​​‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‌​‌‌‌​​​‌‌​‌‌​​​‌​​​‌​​​​‍upon their oaths, present tbat Edward S. Battle and A. M. Powell, in Wake County,on tbe 25th day of September, 1901, did unlawfully and wil- *657 fully mutually assault and beat each other in a publiс place, and inflict serious injury upon each other, during the September Term, 1901, of Wake Superior Court, and within one mile of the court-house of said county, and thеn and there did unlawfully and wilfully fight and make an affray, to the terror of the citizens there аssembled and against the peace and dignity of the State.”

If that bill was intended to bе one for an affray in which serious damage was done, and over which the Superior Court had exclusive original jurisdiction, with the power to punish in excess of a fine of fifty dollars or imprisonment for thirty days, the intention is disappointed. It has been over and ever decided by this Court that in indictments for assaults, assaults and batteries; ‍‌‌​​​‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‌​‌‌‌​​​‌‌​‌‌​​​‌​​​‌​​​​‍and affrаys, where serious damage has been done, it is necessary to describe the “sеrious damages” done, their character and extent, so that the Court can see from the face of the indictment the particular descriptive facts сharged; that the offense contemplated by the statute is charged; and that аn averment that a party to an affray, or a prosecutor injured in an assault, was seriously injured or sustained serious damages, is too general and indefinite. State v. Ernest, 98 N. C., 740; State v. Moore, 82 N. C., 659 ; State v. Russell, 91 N. C., 624; State v. Covington, 94 N. C., 913, 65 Am. Rep., 650; State v. Shelley, 98 N. C., 673; State v. Porter, 101 N. C., 713; State v. Phillips, 104 N. C., 786; State v. Stafford, 113 N. C., 635. In the light of these decisions, the words “inflict serious injury upon each other,” used in the bill of indictment, are meaningless, because they are vague and indefinite. The nature and extent of the injury should have been set forth, so that “the Court and not the pleаder must determine that the facts must constitute the offense, and these must be charged.” State v. Ernest, supra.

But even if the bill had sufficiently charged an affray in ‍‌‌​​​‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‌​‌‌‌​​​‌‌​‌‌​​​‌​​​‌​​​​‍which serious damage had been done, the evidence embraced *658 in tbe case on appeal — tbe testimony of tbe witness Bridgers —does not contain one word concerning tbe nature аnd extent of tbe injuries sustained by Powell, or that be wasi injured in any way, with tbé exception, that be was knocked down by Battle.

We have decided tbis case upon tbe matter brought up' to' us in tbe appeal, and upon nothing else. If, in tbe whole affair, public justice has suffered by reason of a failure of fuller investigation, tbe responsibility is not upon us.

Tbe case is remanded to1 the Superior Court to tbe end that judgment may be pronounced on tbe verdict according to law.

Remanded.