148 S.E. 547 (N.C. 1929), 576, State v. Griggs

Docket Nº:576.
Citation:148 S.E. 547, 197 N.C. 352
Opinion Judge:STACY, C.J.
Party Name:STATE v. GRIGGS.
Attorney:J. D. Mallonee and Moody & Moody, all of Murphy, for appellant. D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
Case Date:June 12, 1929
Court:Supreme Court of North Carolina
 
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Page 547

148 S.E. 547 (N.C. 1929)

197 N.C. 352

STATE

v.

GRIGGS.

No. 576.

Supreme Court of North Carolina

June 12, 1929

         Appeal from Superior Court, Cherokee County; Walter E. Moore, Judge.

         Wilburn Griggs was convicted for violating C. S. § 4215, by assault on a female person, and he appeals. New trial.

         Appellate court was bound by record, though case on appeal was not settled by judge.

         Criminal prosecution tried upon an indictment charging that the defendant did, on November 5, 1928, with force and arms, assault, beat, and wound one Annie Lee Davis, a female; the defendant being at the time, a male person over 18 years of age. C. S. § 4215.

         This is a companion case to No. 575, State v. Baxter Stansberry, 148 S.E. 546, as the two cases grow out of the same general surroundings, though there is more evidence of an assault in the present case than in the other one.

         Here, the prosecuting witness testified that the defendant caught her around the waist, called her "little blue eyes," and carried her down the hill 30 or 40 feet. This was denied in toto by the defendant, who said that he was on his way with Forest Abernathy to look at a house, which Abernathy's father had purchased, and to lock it up, when they met the girls on the way to the spring.

         The following excerpt, taken from the charge, constitutes one of the defendant's exceptive assignments of error: "There is no evidence anywhere, gentlemen, that they went on to the house to look at it or to lock it up, but they stopped near the spring, and then these girls came along and they all got to talking there, but none of the other cases are before you now, gentlemen, but the defendant Griggs who took the little girl off as I have described to you into the woods." Exception No. 2.

         Verdict: "Guilty of the charge as to Wilburn Griggs."

         Judgment: Two years on the roads.

         Defendant appeals, assigning errors.

         J. D. Mallonee and Moody & Moody, all of Murphy, for appellant.

         D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

         STACY, C.J.

         It would appear that the instruction which constitutes the defendant's second exceptive assignment of error, above set out, contains an inadvertent expression of opinion, prohibited by C. S. § 564, to the effect that the defendant had taken the little girl off into the woods, when this was...

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