State v. Gregory
| Citation | 27 S.E.2d 140,223 N.C. 415 |
| Decision Date | 13 October 1943 |
| Docket Number | 223. |
| Parties | STATE v. GREGORY. |
| Court | United States State Supreme Court of North Carolina |
The defendant was tried at the June Term, 1943, of Johnston Superior Court on a bill of indictment reading as follows: "The Jurors for the State upon their oath present, that Bruce Gregory, late of the County of Johnston on the 8th day of May in the year of our Lord one thousand nine hundred and forty three, with force and arms, at and in the County aforesaid, did unlawfully, wilfully and feloniously assault one Will Register with a deadly weapon to wit, a pocket knife, inflicting serious injuries not resulting in death, with intent to kill and murder the said Will Register, against the form of the statute in such case made and provided and against the peace and dignity of the State."
The principal State's witness, Register--who claims to have been assaulted--testified that on the night of May 8th of that year, being in Benson, he went down an alley between the Peacock Drug Store and Benton Printing Company to attend a call of nature. When he got back of the drug store, intending to turn into the alley behind the drug store, someone "hollered" at him. Not seeing the person and failing to understand what he said, he stopped and tried to determine where the voice came from, saw a man sitting on some steps that ran up the side of the building. He heard the man say that he would "do something" or would "come down there," whereupon he turned around sharply and walked back up the alley. When he reached a point about fifteen feet from Main Street in the alley, someone whom he later identified as the defendant, ran up behind him and struck him in the throat with a knife, and he felt soreness from the lick and pain. He was walking toward Main Street when struck. Witness thereupon turned around quickly and began to strike his assailant with both fists. He was cut not only in the throat, but severely in the back.
Upon cross-examination, he denied having any bottle in his hand or striking at anybody with a bottle, or putting his hands upon defendant's clothing.
There was evidence to the effect that blood spurted from the wound in the neck both there and in the hospital, that it was serious and might have caused his death by hemorrhage. The wound in the back was severe, but would not have caused death. After eight days in the hospital and ten days in bed at home, the witness recovered.
The defendant, Gregory, testified that he was sitting on the stairway which ran up from the alley on the side of the drug store building to his apartment over that store; that he had sent his wife out through the alley to get a drink of Coca Cola; that meantime the prosecuting witness came into the alley to attend to a call of nature, and Gregory asked him to leave, telling him that his wife had gone to the drug store and would be back in about half a minute. Witness went to where Register was and again told him that witness' wife had gone to the drug store and would be back any time, and Register said, "Damn you and your wife both," picked up a large bottle found in the alley and struck witness on the left side of his head, then grabbed his overall bib. Witness asked Register to turn him loose, but he continued to hold witness, striking at him on the back and hips. After vainly endeavoring to disengage himself in the fight, witness testifies that he put his hand in his pocket, brought out his knife and "cut himself loose," but did not cut Register anymore after he was turned loose. Witness stated that he fought in self-defense and because he feared that Register would beat him to death, and to keep Register from killing him.
Other testimony is cumulative or corroboratory, and unnecessary to an understanding of the decision.
The case was submitted to the jury, which found as its verdict the following: "Guilty of assault with intent to kill." Upon this verdict judgment was rendered that defendant serve a term of not less than three nor more than four years in the State Prison at Raleigh. Defendant moved to arrest the judgment upon the following grounds: That the indictment was fatally defective in failing to describe the nature and extent of the injury so that its seriousness might be apparent to the court; that the verdict was not responsive to any offense of which he might be convicted under the indictment; and failing his discharge on these grounds, that he should be punished only for a simple assault, that being the highwater mark of the verdict under any possible theory of its validity.
The defendant also excepted to the failure of the judge to instruct the jury upon simple assault.
The motions to set aside the verdict and in arrest of judgment were overruled, and the defendant appealed.
Harry McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.
C.C. Canaday and J.R. Barefoot, both of Benson, for defendant, appellant.
The exception to the Judge's charge needs little discussion. Although the jury might have exercised the privilege given it under pertinent statutes discussed elsewhere, and convicted the defendant of an assault of less grade than that charged, and even of simple assault, the Court is not required to encourage such inconsistency where there is no evidence of such minor offense. State v. Elmore, 212 N.C. 531, 532, 193 S.E. 713; State v. Lee, 192 N.C. 225, 134 S.E. 458; State v. Smith, 201 N.C. 494, 160 S.E. 577; State v. Ratliff, 199 N.C. 9, 153 S.E. 605; State v. White, 138 N.C. 704, 51 S.E. 44. There is no evidence of simple assault apparent in the record.
We direct our attention to the motion in arrest of judgment.
It is usually held, and so in this State, that the verdict of the jury is not vulnerable to a motion in arrest of judgment because of defects in the indictment, unless the indictment wholly fails to charge some offense cognizable at law or fails to state some essential and necessary element of the offense of which the defendant is found guilty. 23 C.J.S., Criminal Law, § 1533; 15 Am.Jur., Criminal Law, Sec. 436; State v. Jones, 218 N.C. 734, 735, 12 S.E.2d 292. As to other less serious defects, objection must be made by motion to quash the indictment or, in proper cases, a bill of particulars may be demanded. Appellant contends that the failure of the indictment to particularly describe the nature and extent of the injury, charged to be serious, is such a fatal defect.
Chapter 101, Public Laws of 1919, Michie's Code of 1939, Sec. 4214, creates a statutory offense in which several elements theretofore appearing merely as aggravating circumstances were combined as essential elements of the crime denounced. Said section reads as follows:
Long prior to the enactment of this statute, the legislature, in an act (C.S. § 4215) which, in its main features, dates back to the early seventies, had dealt with the general subject of assault--including assault as known at the common law--and had attempted to lay down a schedule of punishments according to the aggravation of the offense, and at the same time, by the first proviso of this statute, taken in connection with Art. IV, Sec. 27, of the Constitution, carved out of the general jurisdiction of assaults given the courts an original and exclusive jurisdiction in the courts of justice of the peace, where no deadly weapon had been used and no serious injury inflicted. Pertinent parts of that section read as follows: ...
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