State v. Courtney

• Decision Date: 04 June 1958
• Docket Number: No. 220,220
• Court: North Carolina Supreme Court
• Parties: STATE, v. Donald Eugene COURTNEY.

Page 861

103 S.E.2d 861

248 N.C. 447

STATE, v. Donald Eugene COURTNEY.

No. 220

Supreme Court of North Carolina.

June 4, 1958

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

Amon M. Butler, James B. Ledford and L. Glen Ledford, Charlotte, for defendant, appellant.

BOBBITT, Justice.

The only exceptive assignment of error is that the verdict does not support the judgment. Defendant contends that, since there was no jury finding that he was a man or boy over 18 years of age at the time of the alleged assault, the maximum legal sentence was a fine not in excess of $50 or imprisonment for a term not in excess of 30 days.

According to the agreed case on appeal, the undisputed evidence was that the alleged assault occurred November 7, 1957, the date alleged; and defendant testified (December 2, 1957), on direct examination by his own counsel: 'I am 19 years old. * * * Yes, I was in the armed services for 17 months and 25 days. I have an honorable discharge.'

The precise question is whether, under these circumstances, defendant's testimony as to his age eliminated the necessity for a jury determination that he was over 18 years of age at the time of the alleged assault.

The verdict, 'Guilty of assault on a female,' was a permissible verdict and was accepted. Decisions to the effect that when a jury returns an informal, insensible, or a repugnant verdict, or one that is not responsive to the issues submitted, they may be directed by the court to retire and reconsider the matter and bring in a proper verdict, do not apply. See State v. Gatlin, 241 N.C. 175, 84 S.E.2d 880; State v. Perry, 225 N.C. 174, 33 S.E.2d 869. Defendant does not challenge the acceptance of the verdict or any other feature of the trial.

It is noted further that we are not concerned with a situation such as that considered in State v. Brown, N.C., 103 S.E. 2d 341, and cases cited, where the verdict returned and accepted was insufficient to support the pronouncement of any judgment.

Section 3620, Revisal of 1905, provided: 'Assault, punishment for. In all cases of an assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court: Provided, that where no deadly weapon has been used and no serious damage done, the punishment in assaults, assaults and batteries, and affrays, shall not exceed a fine of fifty dollars or imprisonment for thirty days; but this proviso shall not apply to cases of assault with intent to kill, or with intent to commit rape.'

By Chapter 193, Public Laws of 1911, the General Assembly amended said Section 3620 by adding at the end thereof the following: 'or to cases of assault or assault and battery by any man or boy over eighteen years of age on any female person.' As so amended, said Section 3620 was brought forward and codified as Section 4215, Consolidated Statutes of 1919 C.S. § 4215 was amended by Chapter 189, Fublic Laws of 1933, relating to the competency of communicated threats in certain assault cases where th defendant's plea is self-defense. As so amended, C.S. § 4215 was brought forward and codified as Section 14-33, General Statutes (Volume 1) of 1943. Section 14-33, General Statutes of 1943, was rewritten by Chapter utes of 1943, was rewritten by Chapter 298, Session Laws of 1949; and as rewritten the relevant statutory provisions are now codified as Section 14-33 of the General Statutes (Volume 1B) as recompiled in 1953.

Ch. 193, Public Laws of 1911, amending Revisal, Sec. 3620, was first construed in State v. Smith, 157 N.C. 578, 72 S.E. 853, 855. The indictment, which contained no allegation as to the defendant's age, was for an assault with intent to commit rape. The verdict was, guilty of 'assault and battery on Lillian Whitson--the defendant Truner Smith being over eighteen years of age.' The judgment imposed a 2-year prison sentence. After serving thirty days, the defendant, in habeas corpus proceedings, urged as ground for immediate discharge that, absent an allegation that he was more than eighteen years old, the maximum lawful sentence was thirty days. This Court found no error in the order discharging the writ and reanding the petitioner to custody.

These specific holdings in State v. Smith, supra, have been followed consistently by this Court:

1. The said 1911 Act 'was not intended to create a separate and distinct offense in law, to be known as an assault and battery by a man, or boy over 18 years old, upon a woman,' for 'it was always a crime for a man, or a boy over 18 years of age, to assault a woman.' As stated succinctly by Barnhill, J. (1ater C. J.), in State v. Jackson, 226 N.C. 66, 36 S.E.2d 706, 707: 'G.S. § 14-33 creates no new offense. It relates only to punishment.'

2. The presumption is that the male person charged is over 18 years of age; and the fact, if it be a fact, that he is not over 18 years of age, relevant solely to punishment, is a matter of defense. State v. Lewis, 224 N.C. 774, 32 S.E.2d 334, and cases cited. In State v. Morgan, 225 N.C. 549, 35 S.E.2d 621, and in State v. Herring, 226 N.C. 213, 37 S.E.2d 319, it is stated that the burden of establishing this defense rests on the defendant.

3. Since it is not an essential element of the criminal offense, it is not required that the indictment allege that the defendant was a male person over 18 years of age at the time of the alleged assault. State v. Jones, 181 N.C. 546, 106 S.E. 817; State v. Lefler, 202 N.C. 700, 163 S.E. 873.

Prerequisite to its validity, an indictment must allege every essential element of the criminal offense it purports to charge. State v. Jordan, 247 N.C. 253, 100 S.E.2d 497; State v. Greer, 238 N.C. 325, 77 S.E.2d 917, and cases cited; 27 Am.Jur., Indictments and Informations, Sec. 54; 42 C.J.S. Indictments and Informations § 100.

A plea of not guilty puts in issue every essential element of the crime charged. State v. McLamb, 235 N.C. 251, 256, 69 S.E.2d 537, and cases cited; 14 Am. Jur., Criminal Law, Sec. 268; 22 C.J.S. Criminal Law § 454.

Although not an essential averment, if in fact the indictment charges that the defendant is a male person over the age of 18 years, as in State v. Lewis, supra, and other cases, it may be considered, nothing else appearing, that the defendant's plea of not guilty is a denial of this nonessential averment; but where as here the indictment does not so charge it cannot be said that the defendant, simply by his plea of not guilty, puts in issue whether he was over 18 years of age at the time of the alleged assault.

In State v. Lefler, supra [202 N.C. 700, 163 S.E. 874], Adams, J., quotes the following from State v. Smith, supra: 'It is best, and certainly safe, that the court should require the jury, under a special issue submitted, to find the facts necessary to determine the grade of punishment; * * * and if it is found that he (the man or boy) was over 18 years of age at the time the offense was committed he may be punished, as for an aggravated assault, * * * whether his age is stated in the indictment or not.'

Whether a deadly weapon was used, whether serious damage was done, whether there was an intent to kill, whether there was an intent to commit rape, relate directly to the defendant's conduct in relation to the alleged assault; but whether he was than a man or boy over 18 years of age relates solely to the defendant's personal status at the time of the alleged assault.

Whether defendant was over 18 years of age is a collateral matter, wholly independent of defendant's guilt or innocence in respect of the assault charged; and it would seem appropriate, as pointed out by Walker, J., in State v. Smith, supra, that this be determined 'under a special issue.' Unless the necessity therefor is eliminated by defendant's admission, this issue must be resolved by a jury, not by the court. State v. Lefler, supra; State v. Grimes, 226 N.C. 523, 39 S.E.2d 394; State v. Terry, 236 N.C. 222, 72 S.E.2d 423. And, upon the trial of such issue, the presumption that defendant was over 18 years of age at the time of the alleged assault is evidence for consideration by the jury. State v. Lefler, supra; State v. Lewis, supra; State v. Grimes, supra.

Appellant relies principally on State v. Grimes, supra; and candor comples the admission that this decision, based largely on State v. Lefler, supra, tends in some measure to support his contention.

In State v. Lefler, supra, the indictment did not charge that the defendant was a male person over the age of 18 years, but did charge that he 'did unlawfully, wilfully and feloniously beat and wound one Dora Shoe, she being a female, by throwing her body upon the Bank of South Yadkin River, and thereby seriously and permanently injuring the said Dora Shoe * * *' The jury's verdict was 'Guilty of simple assault.' The judgment imposed a prison sentence of 12 months.

Neither the evidence nor the judge's charge was included in the record on appeal. Absent the evidence and charge, this Court surmised that the verdict 'signified an assault without the use of a deadly weapon or without the infliction of serious injury.' Whether the defendant, during the trial, contended that he was not over 18 years of age, does not appear; nor does it appear that the court, in instructing the jury, submitted for their consideration and determination whether defendant was over 18 years of age at the time of the alleged assault. It would appear that the skeleton record on appeal caused such uncertainty as to the significance of the verdict as to cause this court, 'in the absence of a finding as to the defendant's age,' to award a new trial.

In State v. Grimes, supra, the defendant was first tried in the Recorder's Court and thereafter in superior court on a warrant charging simply that he unlawfully and wilfully assaulted Mrs. J. C. Perkins, a female. The State's evidence tended to show that defenda...