200 S.E. 371 | N.C. | 1939
The defendant was arrested upon a warrant issued from the county court of Lee County, charging that he "did unlawfully and willfully and feloniously assault Simon Steele with a deadly weapon, to wit, a knife, inflicting serious damage, with intent to kill the said Simon Steele, against the form of the statute in such cases made and provided." Plea, not guilty.
In the county court the only entry was "Court adjudges defendant guilty of assault with deadly weapon, inflicting serious damage." Sentence of 60 days on the roads was imposed. Defendant appealed to the Superior Court.
In the Superior Court the defendant was tried on the original warrant and without a bill of indictment. After the jury was impaneled defendant moved to dismiss the warrant and quash the proceedings because the warrant charged a felony and no bill of indictment had been returned by the grand jury. Pending the motion, the court, over objection by the defendant, permitted the solicitor to amend the warrant by striking out the words "feloniously" and "with intent to kill the said Simon Steele," and thereupon denied defendant's motion, to which he excepted. There was verdict of guilty of assault with deadly weapon, and from judgment imposing sentence of imprisonment from sixteen to twenty-four months defendant appealed to the Supreme Court.
Since the warrant charged the commission of a felony under the statute (C. S., 4214), the defendant could not be put to answer but by indictment. Constitution, Art. I, sec. 12; S. v. Hyman,
In the case at bar, after this defendant had been put to trial in the Superior Court on the original warrant without a bill of indictment and over his objection, the solicitor was permitted to amend the warrant by striking therefrom the words in which the charge of felony under the statute were contained, thereby changing the offense charged from a felony to a misdemeanor. There was no waiver by defendant of bill for a misdemeanor. While amendments to process and pleading, under our procedure, in both civil and criminal causes, are liberally allowed (C. S., 547; C. S., 1500; Rule 12), this does not imply that the court has power to change the nature of the offense intended to be charged so as to charge a different offense in substance from that at first intended. S. v. Vaughan,
Neither of the cases cited by the State sustains the action of the court below in permitting the amendments objected to. In S. v. Davis,
In S. v. Mills,
The defendant's objection to the amending of the warrant as permitted in this case seems to have been well taken, and the court below was in error in ruling the defendant to trial without a bill of indictment duly found. The cause is remanded with directions that the verdict and judgment be set aside, and that upon the warrant issued the defendant be held under bond pending action by the grand jury, or until the case is disposed of according to law.
Error and remanded.