State v. Efird

• Decision Date: 21 November 1923
• Docket Number: (No. 408a.)
• Citation: 186 N.C. 481,119 S.E. 881
• Parties: STATE. v. EFIRD.
• Court: North Carolina Supreme Court

119 S.E. 881

(186 N.C. 481)

STATE.

v.EFIRD.

(No. 408a.)

Supreme Court of North Carolina.

Nov. 21, 1923.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Arrest of Judgment.]

Appeal from Superior Court, Stanly County; Stack, Judge.

J. J. Efird was convicted of assault on a female, and he appeals. No error.

The defendant was indicted for rape. The jury convicted him of an assault on a female, he being over 18 years of age, and he appealed.

J. R. Price and R. L. Smith, both of Albemarle, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS, J. [1] When a person is indicted for rape or for any other felony which includes an assault against the person of another it is lawful for the jury to acquit of the felony and to find a verdict of guilty of an assault if the evidence warrants such finding; and when such verdict is found the court has power to imprison the defendant for any term allowed by law in case of conviction on an indictment for an assault of like character. C. S. § 4639. An assault on a female person by a man or boy over 18 years old is punishable as a misdemeanor, and all misdemeanors are to be presented or found by the grand jury within two years from the time they are committed, and not afterwards. C. S. §§ 4215, 4512.

There was evidence tending to show that the assault of which the defendant was convicted was committed more than two years before the prosecution was instituted; and, after the verdict was returned, but before judgment was pronounced, the defendant moved the court to arrest the judgment on the ground that the prosecution was barred by the lapse of time. We think his honor properly denied the motion.

By "arrest of judgment" is meant the refusal of the court to enter a judgment for some cause apparent upon the record, the "case on appeal" not being a part of the record proper. I Archbald's Cr. P. & P. 573; 2 Bishop's New Cr. Proc. § 1182; Clark's Cr. Proc. 492; State v. Potter, 61 N. C. 338; State v. Matthews, 142 N. C. 621, 55 S. E. '342.

In State v. Roberts, 19 N. C. 541, Chief Justice Ruffin said:

"Judgment can be arrested only for matter appearing in the record, or for some matter which ought to appear and does not appear in the record. If a bill of indictment be found without evidence, or upon illegal evidence, as upon the testimony of witnesses not sworn in court, the accused is not without remedy. Upon the establishment of the fact, the bill may be quashed. State v. Cain, 1 Hawks, 352. Or the matter may be pleaded in abatement. But the judgment cannot be arrested; for it is no part of the record, properly speaking, to set forth the witnesses examined before the grand jury, or the evidence given by them, more than it is to set out the same things in reference to the trial before the petit jury."

This principal has been maintained with uniformity in many subsequent decisions. State v. George, 30 N. C. 324, 49 Am. Dec. 392; State v. Potter, supra; State v. Douglass, 63 N. C. 500; State v. Walker, 87 N. C. 541; State v. Lanier, 90 N. C. 714; State v. Sheppard, 97 N. C. 402, 1 S. E. 879; State v. Davis, 126 N. C. 1007, 35 S. E. 464; State v. Carpenter, 173 N. C. 769, 92 S. E. 373; State v. Lemons, 182 N. C. 828, 109 S. E. 27. When proof is required to support it, the objection must be taken by a motion toquash or by a plea in abatement. State v. Bordeaux, 93 N. C. 560.

It will be noted that the defendant's motion in arrest is...