State v. . Jackson
36 S.E.2d 706
N.C.
1946
Check Treatment
Barnhill, J.

Dеfendant, by his exceptive assignments of error, poses two questions for decision: (1) when a man or boy over 18 years of age who is charged with an assault on a female tenders a plea of guilty of a simple assault “on Mrs. Walker,” may the court impose sentence in excess of 30 days; and (2) may the court impose a prison sentenсe and then over the objection of defendant suspend or stay execution on condition the defendant make regular monthly payments toward the support of his wife who was not the person assaulted ?

G. S., 14-33, creates no new offense. It relates only to punishment. Under its provisions all assaults, and assaults and batteries, not made felonies by other statutes are general misdemeanors punishable in the ‍‌​​​‌​​​​‌‌‌‌​​‌‌​​​​‌​​​​‌‌‌‌​​​‌​​​‌​‌‌‌​‌​​​​‍discretion of the сourt, except where no deadly weapon has been used and no serious dаmage done the punishment may not exceed a fine of $50 or imprisonment for 30 days, unlеss the assault is committed upon *68 a female by a man or boy over 18 years of agе. Assaults and assaults and batteries upon a female by a man or boy over 18 years of age are expressly excluded from the proviso or exception. Thus they remain general misdemeanors. S. v. Smith, 157 N. C., 578, 72 S. E., 853; S. v. Gregory, 223 N. C., 415, 27 S. E. (2d), 140; S. v. Bentley, 223 N. C., 563, 27 S. E. (2d), 738; S. v. Morgan, 225 N. C., 549.

As said by Walker, J., speaking for the Court in S. v. Smith, supra:

“Discarding all superfluities and rejecting nice distinctions аnd subtle refinements, and stripping these statutes to the bone, even to the marrow, the rеal intention of the Legislature is laid perfectly bare and its meaning becomes ‍‌​​​‌​​​​‌‌‌‌​​‌‌​​​​‌​​​​‌‌‌‌​​​‌​​​‌​‌‌‌​‌​​​​‍apparent. It all, therefore, results in this, that a man who is . . . convicted of a simple assault and battery upon a woman, . . . he being over the age of eighteen years, can be punished at the discretion of the court . . .”

But the court below pronounced judgment and then over the protest and objection of defendant suspended or stаyed execution for an indefinite period on condition that defendant make monthly payments toward the support of his wife. In this there was error.

At common law the court could suspend judgment temporarily for some special purpose such as to allow the defendant time in which to move for a new trial ‍‌​​​‌​​​​‌‌‌‌​​‌‌​​​​‌​​​​‌‌‌‌​​​‌​​​‌​‌‌‌​‌​​​​‍or to show that he was entitled to the benefit of clergy or to apply for a pardon or to take somе other step in the ordinary procedure of the case. S. v. Bennett, 20 N. C., 170; S. v. Crook, 115 N. C., 760; S. v. Hilton, 151 N. C., 687, 65 S. E., 1011.

In the early years оf our history our judges, desiring to show leniency and at the same time hold the defendant under sоme, restraint, began to extend the scope of this power by suspending sentencе or staying execution on good behavior or other stipulated conditions. The procedure was upheld on the grounds that such orders were not prejudicial but favorable to the defendant and decision in each case was made to turn on the fact that defendant, being present, either sought or consented to such order.

“Thе authority of the court, on conviction, to postpone the infliction of punishment has been conceded only where the defendant ‍‌​​​‌​​​​‌‌‌‌​​‌‌​​​​‌​​​​‌‌‌‌​​​‌​​​‌​‌‌‌​‌​​​​‍either expressly assents or, being present, fails to object, and is therefore presumed to give his consent to the order.” S. v. Griffis, 117 N. C., 709.

As thus approved the practice has prevailed so long that it mаy now be considered a settled part of the permissible procedure in such cases. S. v. Crook, supra; S. v. Griffis, supra; ‍‌​​​‌​​​​‌‌‌‌​​‌‌​​​​‌​​​​‌‌‌‌​​​‌​​​‌​‌‌‌​‌​​​​‍S. v. Hilton, supra; S. v. Everitt, 164 N. C., 399, 79 S. E., 274; S. v. Tripp, 168 N. C., 150, 83 S. E., 630; S. v. Burnette, 173 N. C., 734, 91 S. E., 364; S. v. Greer, 173 N. C., 759, 92 S. E., 147; S. v. Hoggard, 180 N. C., 678, 103 S. E., 891; S. v. Hardin, 183 N. C., 815, 112 S. E., 593; S. v. Vickers, 184 N. C., 676, *69 114 S. E., 168; S. v. Phillips, 185 N. C., 614, 115 S. E., 893; S. v. Shepherd, 187 N. C., 609, 122 S. E., 467; S. v. Henderson, 206 N. C., 830, 175 S. E., 201; S. v. Anderson, 208 N. C., 771, 182 S. E., 643; S. v. Ray, 212 N. C., 748, 194 S. E., 472; S. v. Wilson, 216 N. C., 130, 4 S. E. (2d), 440; S. v. Calcutt, 219 N. C., 545, 15 S. E. (2d), 9; S. v. Pelley, 221 N. C., 487, 20 S. E. (2d), 850; S. v. Miller, 225 N. C., 213; S. v. Graham, 225 N. C., 217.

But here the defendant did not consent. Hе in apt time entered his exception and noted his appeal. Hence, sinсe the form of punishment imposed is neither sanctioned by statute nor assented to by dеfendant, the judgment cannot stand.

As said by Stacy, C. J., in S. v. Webb, 209 N. C., 302, 183 S. E., 367:

“As the defendant neither sought nor accepted the indulgence and forbearance of the court, it was error to withhold final judgment, or sоme judgment in its nature final, so that the defendant might test the validity of the trial by appeal.” S. v. Burgess, 192 N. C., 668, 135 S. E., 771; S. v. Jaynes, 198 N. C., 728, 153 S. E., 410; S. v. Griffis, supra.

The defendant was not placed on probation. The court clearly proceeded under the practice prevailing prior to the adoption of ch. 132, Public Laws 1937, now G. S., ch. 15, Art. 20. Hence anything here, said has no bearing upon and is not intended as an interpretation or delimitation of that Act.

The judgment entered is stricken and the cause is remanded for a proper judgment.

Error and remanded.