State v. Cunningham.

• Decision Date: 28 February 1886
• Citation: 94 N.C. 824
• Court: North Carolina Supreme Court
• Parties: STATE v. E. K. CUNNINGHAM.

94 N.C. 824

STATE

v.E. K. CUNNINGHAM.

Supreme Court of North Carolina.

February Term, 1886.

INDICTMENT for an assault and battery, tried before Gilmer, Judge, at Spring Term, 1885, of MACON Superior Court.

The indictment was as follows, to-wit:

“The jurors for the State, upon their oath present, that E. K. Cunningham, in Macon county, on the 22d day of September, 1884, in and upon one J. M. Davis, then and there with a certain deadly weapon, to-wit: a ____, unlawfully and wilfully did make an assault, and him, the said J. M. Davis, there and then, unlawfully and wilfully, did beat, wound and seriously injure, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

The jury returned the following verdict:

“The jury empaneled in this case, find that in the month of September, 1884, the defendant, by reason of insulting words used to him by the prosecutor, struck him with his fist; that at the Superior Court held afterwards, in the same month, September, 1884, this indictment was found. Upon this state of facts, if the Court is of opinion that the defendant is guilty, the jury find him guilty; but if the Court is of the opinion that the defendant is not guilty, the jury find the defendant not guilty.”

Upon this finding of the jury, the Court held that the defendant was not guilty, and the Solicitor for the State appealed from this ruling to the Supreme Court.

Attorney General for the State .

No counsel for the defendant.

ASHE, J., (after stating the facts).

There is manifest error in the judgment of the Superior Court. First, for the reason that there was no plea filed by the defendant, and therefore no issue to be submitted to the jury, and consequently the verdict returned by them was a nullity; and it must follow as a necessary consequence, that no judgment could be pronounced upon such a verdict; and, secondly, because the Superior Court had no jurisdiction of the case, unless the assault was committed more than six months prior to the finding of the bill of indictment, and no Justice of the Peace had, in the meantime, taken cognizance of the case. By §892 of The Code, exclusive original jurisdiction is given to the Justices of the Peace, of “all assaults, assaults and batteries, and affrays, where no deadly weapon is used, and no serious damage is done,” but it is further provided, “that nothing in this section shall be construed to prevent the Superior Court from assuming jurisdiction of all offences, whereof exclusive original jurisdiction is given to Justices of the Peace, if some Justice of the Peace, within six months after the commission of the offence, shall not have proceeded to take official cognizance of the same.” This section...