State v. Revels

Decision Date11 December 1946
Docket Number652
Citation40 S.E.2d 474,227 N.C. 34
PartiesSTATE v. REVELS et al.
CourtNorth Carolina Supreme Court

Under several indictments, consolidated for trial, the defendants among other counts not pertinent to this review, were charged with felonious assault with a deedly weapon with intent to kill, and inflicting serious injuries not resulting in death on John Baxley, Billie James Baxley and Charlie Rogers, respectively.

There was evidence on the part of the State tending to show that the persons assaulted were traveling in a wagon drawn by mules, towards home from Lumberton, where they had bought some supplies which were being carried on the wagon. The wagon was about two-thirds across an intersecting road when defendants, in a car carrying no lights, ran into the tongue of the wagon, knocking off Charlie Rogers and the three-year-old grandson of Baxley, crushing the hand of the child and doing other injuries. The defendants did not stop. After picking up Rogers and the hurt child, Baxley drove the wagon in the direction of home. In about 15 or 20 minutes the defendants, still driving without lights, overtook the wagon from behind. The two Revels went around, caught the mules and stopped the wagon. They then demanded pay for damage to the automobile and told the occupants of the wagon, 'You are going to pay us before you leave here. ' When Baxley refused, they ran upon him, and the mules broke and ran. The defendants then got hold of the wagon, one of them cut Baxley across the hand, severing the leaders to the bone. Rogers was cut in the back so severely it took twenty-six stitches 'on the outside' and three 'on the inside' to close the wounds. The three-year-old child was also cut during the assault in addition to the wounds received in the collision. The wounds were knife wounds, and severe. Those on Baxley severed the leaders on one hand, and those on Rogers produced severe hemorrhage.

There was evidence on the part of defendants in contradiction.

The defendants demurred to the evidence as being insufficient to sustain an inference of felonious assault, or intent to kill and moved for judgment of nonsuit with respect to said charge. The motion was overruled and defendants excepted.

The Judge instructed the jury, in indicating the verdicts permissible under the evidence, that they might find the defendants guilty under all the counts. The defendants excepted, contending that there was no evidence of felonious assault or intent to kill.

There was a general verdict of guilty, and thereupon the defendants were sentenced to be confined in the State's Prison for a term of not less than five nor more than seven years, the sentences to run concurrently.

The defendants appealed.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

John S. Butler, of St. Pauls, for defendants appellants.

SEAWELL Justice.

The appellants present two questions for review: Whether the case should have been nonsuited, on the demurrers to the evidence, with respect to the charge of felonious assault; and whether the Court erred in its instruction to the jury, that they might, as a permissible verdict, find the defendants guilty on all counts, thus including the charge of felonious assault. The exceptions are, of course, interrelated, the propriety of the instruction depending upon the validity of the judgment overruling the demurrers. We turn our attention to that question.

The appellants contend that there was no evidence of an intent to kill. They do not contend, considering the specific nature of the demurrer, that...

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