State v. Allen

• Decision Date: 12 December 1956
• Docket Number: No. 582,582
• Citation: 245 N.C. 185,95 S.E.2d 526
• Court: North Carolina Supreme Court
• Parties: STATE, v. Paul A. ALLEN.

Page 526

95 S.E.2d 526

245 N.C. 185

STATE, v. Paul A. ALLEN.

No. 582

Supreme Court of North Carolina.

Dec. 12, 1956

Z. H. Howerton, Jr., Greensboro, for defendant-appellant.

George B. Patton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

PARKER, Justice.

The defendant presents for decision one question: did the trial court commit error in denying his motion for judgment of nonsuit made at the close of the State's evidence.

The warrant charges an assault, not an assault and battery.

In State v. McIver, 231 N.C. 313, 56 S.E. 2d 604, 606, 12 A.L.R.2d 967, the facts were as follows: On January 7 about 7:00 a. m. Mrs. Helen Outlaw was walking to work on Russell Street in the city of Fayetteville. Near the railroad crossing she met the defendant, who said to her, 'you are looking pretty this morning.' On Thursday on her way to work she met him again. It had been raining and she was walking a little to the edge of the sidewalk. She saw the defendant coming toward her, and he started talking. This Court said his words may be fairly construed as an indecent sexual proposal. She was frightened, and ran across the street. On Friday morning she met the defendant at the same place, and he made a similar remark. Police were near by because Mrs. Outlaw had told them of the former occurrences, and they arrested the defendant. This Court held that the evidence was properly submitted to the jury, and said: 'North Carolina is rightly listed as one of the jurisdictions in which it is not essential to the definition of assault, or to the completion of that crime, that there should be a present ability to carry out the threat or menace if it is sufficient in manner and character to cause the person menaced to forego some right of conduct he intended to exercise, or to leave a place where he had a right to be.'

In State v. Sutton, 228 N.C. 534, 46 S.E. 2d 310, this Court held the State's evidence made out for the jury a case of assault, where the defendant's standing and staring at Mrs. Louise Allen caused her to leave her office where she was at work in the courthouse at Plymouth, and go out into the hall, and stand on the first step leading to the courtroom. The defendant followed her into the hall, and continued to stare at her. She stepped up two more steps, and the defendant stepped towards her two more steps still staring. She became frightened and ran up the steps screaming, and the defendant ran up the steps behind her.

In State v. Williams, 186 N.C. 627, 120 S.E. 224, evidence that a 23-year-old man several times accosted a 15-year-old girl on the streets of a town, with improper solicitation, causing her to flee from him in a direction she had not intended to go, and, in her great fear of him, causing her to become nervous and to lose sleep at night, was held to make out a case for the jury of an assault on a female.

In State v. Daniel, 136 N.C. 571, 48 S.E. 544, 545, it is said: 'The principle is well established that not only is a person who offers or attempts by violence to injure the person of another guilty of an assault, but no one by the show of violence has the right to put another in fear, and thereby force him to leave a place where he has a right to be.'

In State v. Martin, 85 N.C. 508, the Court said: 'The principle governing this case has been decided by several adjudications on the subject by this Court. The principle is that no man by the show of violence has the right to put another in fear and thereby force him to leave a place where he has the right to be.'

The rules of law in respect to assaults are plain, but their application to the facts is sometimes fraught with difficulty. Each case must depend upon its own peculiar circumstances.

The...