State v. Archbell

• Decision Date: 12 September 1905
• Citation: 51 S.E. 801,139 N.C. 637
• Parties: STATE. v. ARCHBELL.
• Court: North Carolina Supreme Court

139 N.C. 637

51 S.E. 801

STATE.

v.ARCHBELL.

Supreme Court of North Carolina.

Sept 12, 1905.

1. Criminal Law—Remarks of Prosecuting Attorney—Seasonable Objection.

That denunciation of defendant by the prosecuting attorney may be complained of, attention of the court should be called thereto at the time, that it may have opportunity to correct the effect thereof.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2645.]

2. Assault — Deadly Weapon—Question fob Jury.

So far as defendant is concerned there is no error in submitting to the jury the question whether his assault on his wife was with a deadly weapon; he being very strong, large, and robust, she being very frail and weak, and sick at the time of the assault, and he having violently assaulted her with a buggy trace 2% feet long.

[Ed. Note.—For cases in point, see vol. 4, Cent. Dig. Assault and Battery, § 141.]

Appeal from Superior Court, Beaufort County; Ward, Judge.

W. J. Archbell, the defendant, was indicted for an assault upon Jessie Archbell, his wife, with a deadly weapon, and tried at May term of Beaufort superior court, and convicted. From the judgment and sentence of the court, he appealed. Affirmed.

E. S. Simmons, for appellant.

The Attorney General, for the State.

BROWN, J. The testimony relied upon by the state tended to prove that the defendant assaulted his wife by severely beating her with a large leather strap, being part of a buggy trace, about 2 1/2 feet long. There was also testimony tending to prove that at the time the wife was very sick. These charges were all denied by the defendant on the stand, and he offered other evidence tending to discredit them. In the very able brief of Mr. Simmons, counsel for defendant, it is contended with much feeling and eloquence that the defendant was greatly prejudiced by the alleged vehement denunciation of the solicitor in his argument to the jury, and the able counsel presents authority to sustain his position. It is admitted in the brief that no objection was made at the time, and that the court was not asked to interfere and correct the effect of the solicitor's denunciation. No such exception appears in the record. This necessarily precludes us from considering it. The matter should have been called to the attention of the court at the time, in order that the judge might have an opportunity to correct the solicitor, in case he should think the language was not warranted by the testimony. State v. Suggs, 89 N. C. 530; State v. Lewis, 93 N. C. 582.

The court submitted to the jury, with appropriate instruction, the question whether the instrument used was a deadly weapon, to which the defendant excepted. The court also properly instructed the jury to render a verdict of simple assault, or assault, as charged, with a deadly weapon, or not guilty, as they should find the facts after fully satisfying themselves as to the truth of the matter.

We find no error in the instructions given by his honor below. The charge is full and clear, and supported by authority. Some weapons...