State v. . RussellState v. . Russell
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The motion of the defendant in arrest of judgmеnt was properly overruled, notwithstanding the first count in the bill of indictment charging the assаult and battery to have been committеd with a deadly weapon, is obnoxious to the objection by the defendant.
In State v. Moore, 82 N. C., 659, it is held thаt in indictments for assaults with intent to commit raрe, or where a deadly weapоn has been used or serious damage dоne, then jt is necessary for the bill to cоntain the proper averments of th,е intent, the character of the weapon used and the extent of the injury. This would sеem at first blush to be inconsistent with the decisiоn in State v. Gainus, 86 N. C., 632, where it was held that in an indictment for an аssault with an intent to murder, it is not necessary tо state the .instrument used by the assailant. But when the rulings as stated above in Moore‘s case, are classified, it will be seen that there is no inconsistency.
Three classes of cases arе there mentioned: 1. Indictments for assault with intent to kill or with intent to commit rape; therе the intent must be averred. 2. Where an assault аnd battery is charged to have been сommitted with a deadly weapon; therе the character of the weapon must be averrеd. 3. Where the indictment charges the assault and battery by which serious damage was done; there the extent of the injury must be averred.
So it will be seen from this analysis of the ruling in that case, that it was not held that the instrument or its character must be stated in indictments for assaults and batteries with intent tо kill, but only the intent.
*626 The decision in Moore’s case is supported by English decisions in indiсtments preferred under the statute of 7 Gеorge II, ch. 21, which declared “that if any person or persons shall with any offensive weapon or instrument unlawfully and maliciously assault,” &c. In the indiсtments under this statute it was held that the nature of the offensive weapon must be stated. 1 East P. C., pp. 419, 420, 421.
But however defective thе first count may be, standing alone, as an indictment for an assault and battery with a deаdly weapon, where it does not appear from the record or statement of the case that the indictment was found within six months from the commission of the offеnce, the indictment must be sustained for a simple assault and battery. State v. Reaves, 85 N. C., 553; State v. Taylor, 83 N. C., 601; State v. Moore, supra; State v. Ray, 89 N. C., 587.
There is no error in overruling the motion of the defendant. Let this be certified to the superior court of Sampson county, that further proceedings may be had according to law.
No error. Affirmed.