State v. . Grimes
39 S.E.2d 394
N.C.
1946
Check Treatment
Stacy, C. J.

The question for decision is whether the record supports the judgment.

The warrant, as originally drawn, charges an assault on a female, and no more. There is no allegation that a deаdly weapon was used or that any serious damage was done. Nor was it alleged that the defendant is a “man or boy over eighteen years old.” G. S., 14-33. It is this warrant to which the verdict speaks. Thе subsequent amendment relating to the age of the defendant' was not before the jury, and the vеrdict. is silent on the subject of the amendment. Just the reverse was true in S. v. Lewis, 224 N. C., 774, 32 S. E. (2d), 334.

It is the contention of the dеfendant that the punishment in such a case is restricted ‍​​‌​‌‌‌​‌‌​‌‌​​‌​‌​​​​‌​‌​​‌‌​‌‌‌​​​​​‌​‌‌‌‌‌​‌​‍to a fine of not more than fifty dollars or imprisonment not in excess of thirty days. S. v. Nash, 109 N. C., 824, 13 S. E., 874.

Speaking to a similar situation in S. v. Lefler, 202 N. C., 700, 163 S. E., 873, Adams, J., delivering the opinion of the Court, said: “To justify the sentencе imposed (imprisonment for a term of twelve months) the defendant must have been over the аge of eighteen years, and as to this there is no finding by the jury. If he was over eighteen years of age *525 tbe punishment would not be restricted to a fine of fifty dollars or imprisonment not exceеding thirty days, although a deadly weapon was not used and serious injury was not inflicted. In the absencе of a finding as to the defendant’s age, we must award a new trial.”

It will be noted that in the Lefler case, supra, the indictment was for an assault on a female resulting in serious and permanent injury. Under such a bill and the record there presented, it was permissible to convict the defendant of “a less degree of the same crimе charged,” G. S., 15-170, which would include an assault on a female by a man or hoy over 18 years old, as well as by a boy under that age or by a female of any age. A bill for ‍​​‌​‌‌‌​‌‌​‌‌​​‌​‌​​​​‌​‌​​‌‌​‌‌‌​​​​​‌​‌‌‌‌‌​‌​‍a more serious offеnse is regarded as containing charges of all “less degrees” of the same crime, without specifying the elements of these “less degrees.” Hence, speaking to a bill which charged a more serious offense, it was said that the elements of the “less degrees” of the same crime need not be alleged, albeit the jury would be required to find the degree of the crime in its verdict. S. v. Bentley, 223 N. C., 563, 27 S. E. (2d), 738.

Here, the verdict pronounces the defendant guilty of an assault on a femalе, simpliciter. No deadly weapon was used and no serious damage was done. Whether the permissible punishment is restricted, or in the discretion of the court, depends upon the age and sex оf the defendant. These must appear in order to support a judgment as for an aggravated assault. S. v. Smith, 157 N. C., 578, 72 S. E., 853. When a defendant is convicted of an assault and there are circumstances of aggravation, and the circumstances of aggravation are that the defendаnt is a man or boy over 18 ‍​​‌​‌‌‌​‌‌​‌‌​​‌​‌​​​​‌​‌​​‌‌​‌‌‌​​​​​‌​‌‌‌‌‌​‌​‍years of age and the assaulted person is a female, the рunishment for the offense may be by fine or imprisonment, or both, at the discretion of the court. G. S., 14-33; S. v. Bentley, supra. True, there is a presumption that the defendant was over 18 years of age. S. v. Herring, ante, 213. But this is only a presumption. S. v. Lefler, supra.

Generally, in chаrges of assault or assault and battery with varying degrees of aggravation, the jury may convict оf the assault or assault and battery and acquit, in whole or in part, of the circumstances оf aggravation. S. v. Bentley, supra. Questions of jurisdiction and limitation of punishment are dependent upon the offense charged ‍​​‌​‌‌‌​‌‌​‌‌​​‌​‌​​​​‌​‌​​‌‌​‌‌‌​​​​​‌​‌‌‌‌‌​‌​‍and the plea of the defendant or -the finding of the jury. G. S., 7-129; 7-63; 7-64; 14-33; S. v. Johnson, 94 N. C., 863; S. v. Smith, 174 N. C., 804, 93 S. E., 910. To this general rule, however, there seems to be at least one exception. When a “man or boy over 18 years old” commits an assault or assault and battery on “any female person,” even though no deadly weapon be used and no serious damage is done, the case is regarded as a general misdemeanor and the punishment is in the discretion of the court. S. v. Jackson, ante, 66, 36 S. E. (2d), 706. Hence, to *526 take the сase out of the general rule and place it in the exception, the jury should determine in its verdict, specifically or by reference to the charge, the circumstances оf aggravation which make the offense a general misdemeanor. S. v. Lefler, supra; S. v. Lewis, supra.

In other words, it all cоmes to this: a simple assault on a female by a boy not over 18 years old or by another fеmale is restricted in punishment to a fine not exceeding ‍​​‌​‌‌‌​‌‌​‌‌​​‌​‌​​​​‌​‌​​‌‌​‌‌‌​​​​​‌​‌‌‌‌‌​‌​‍$50 or imprisonment for not more than 30 dаys. The same assault, if committed by á man or boy over 18 years of age, would be punishable in the disсretion of the court.

The question we are now considering was not in focus, or mooted, in the cases of S. v. Jackson, ante, 66, 36 S. E. (2d), 706; S. v. Morgan, 225 N. C., 549, 35 S. E. (2d), 621; S. v. Stokes, 181 N. C., 539, 106 S. E., 763; S. v. Jones, 181 N. C., 546, 106 S. E., 817. Moreover, in all these cases the bills were for more serious offensеs or more aggravated assaults.

There was no error in allowing the solicitor to amend the warrant, as this was a matter resting in the sound discretion of the trial court. S. v. Brown, 225 N. C., 22, 33 S. E. (2d), 121. Coming as it did, however, after verdict, the amendment was ineffectual to supply the deficiency of the jury’s finding. So, conforming to the precedent of the Lefier case, supra, the present cause will be remanded for another hearing.

Venire de novo.