State v. Clegg, 222.

• Decision Date: 04 January 1939
• Docket Number: No. 222.,222.
• Citation: 214 N.C. 675,200 S.E. 371
• Parties: STATE. v. CLEGG.
• Court: North Carolina Supreme Court

214 N.C. 675

200 S.E. 371

STATE.

v.CLEGG.

No. 222.

Supreme Court of North Carolina.

Jan. 4, 1939.

Appeal from Superior Court, Lee County; Clawson L. Williams, Judge.

Frank Clegg was convicted of assault with a deadly weapon, and he appeals.

Error, and cause remanded, with directions.

The defendant was arrested upon a warrant issued from the County Court of Lee County, charging that he "did unlawfully and wilfully and feloniously assault Simon Steele with a deadly weapon, to-wit, a knife, inflicting serious damage, with intent to kill the said Simon Steele, against the form of the statute in such cases made and provided." Plea not guilty.

In the County Court the only entry was "Court adjudges defendant guilty of assault with deadly weapon, inflicting serious damage." Sentence of 60 days on the roads was imposed. Defendant appealed to the Superior Court.

In the Superior Court the defendant was tried on the original warrant and without a bill of indictment. After the jury was impaneled defendant moved to dismiss the warrant and quash the proceedings because the warrant charged a felony and no bill of indictment had been returned by the grand jury. Pending the motion the court, over objection by the defendant, permitted the solicitor to amend the warrant by striking out the words "feloniously" and "with intent to kill the said Simon Steele, " and thereupon denied defendant's motion, to which he excepted. There was verdict of guilty of assault with deadly weapon, and from judgment imposing sentence of imprisonment from sixteen to twenty-four months defendant appealed to the Supreme Court.

D. B. King and K. R. Hoyle, both of Sanford, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach, Asst. Attys. Gen., for the State.

DEVIN, Justice.

Since the warrant charged the commission of a felony under the statute (C.S. § 4214), the defendant could not be put to answer but by indictment. Constitution, Art. 1, sec. 12; State v. Hyman, 164 N.C. 411, 79 S.E. 284; State v. Rawls, 203 N.C. 436, 166 S.E. 332. A similar question to the one raised by this appeal was recently considered by this court in State v. Sanderson, 213 N.C. 381, 196 S. E. 324. In that case the warrant issued by the County Court, charging the defendant with "operating 'a whiskey still, '" was there amended to read "this being a second offense for manufacturing whiskey, " a felony under the statute (C.S. § 3409.) On this warrant preliminary hearing was waived and the defendant bound over to the Superior Court. In the Superior Court at October Term, 1936, bill of indictment was returned, and at January Term, 1937, "nol pros" was entered by the solicitor, and the cause remandedto the County Court for trial upon the warrant. Thereafter the defendant was tried in the County Court on the warrant, and from conviction and sentence appealed to the Superior Court. In the Superior Court, over objection, defendant was tried on the warrant, convicted and sentenced. On his appeal to this court, it was said, Stacy, C. J, speaking for the court: "The defendant has been tried upon a warrant charging him with a felony. * * * For this offense trial may be had only upon a bill of indictment found by a grand jury."

In the case at bar, after this defendant had been put to trial in the Superior Court on the original warrant without a bill of indictment and over his objection, the solicitor was permitted to amend the warrant by striking therefrom the words in which the charge of felony under the statute were contained, thereby changing the offense charged from a felony to a misdemeanor. There was no waiver by defendant of bill for a misdemeanor. While amendments to process and pleading, under our procedure, in both civil and criminal causes, are liberally allowed (C.S. §§ 547, 1500, Rule 12), this does not imply that the court has power to change the nature of the offense intended to be charged so as to charge a different offense in substance from that at first intended. State v. Vaughan, 91 N.C. 532; State v. Crook, 91 N.C. 536; State v. Norman, 110 N.C. 484, 14 S.E. 968; State v. Wernwag, 116 N.C. 1061, 21 S.E. 683, 28 L.R.A. 297,...