State v. Grimes

• Decision Date: 18 September 1946
• Docket Number: 74
• Citation: 39 S.E.2d 394,226 N.C. 523
• Parties: STATE v. GRIMES.
• Court: North Carolina Supreme Court

39 S.E.2d 394

226 N.C. 523

STATE v. GRIMES.

No. 74

Supreme Court of North Carolina

September 18, 1946

Criminal prosecution upon a warrant charging the defendant with 'assault on Mrs. J. C. Perkins, a female', contrary to law.

The case was first tried in the Recorder's Court of Rocky Mount on December 7, 1945, and resulted in conviction and sentence of 18 months on the roads. On appeal to the Superior Court of Nash County, the matter was heard de novo at the March Term, 1946.

It was in evidence that the defendant followed the prosecuting witness in the nighttime, beat her and caused her face to bleed.

Verdict 'Guilty of an assault on a female as charged in the warrant.'

After verdict and before judgment, the solicitor moved to amend the warrant so as to charge an assault on a female by a man or boy over eighteen years of age. Objection by defendant overruled; exception.

Judgment 18 months on the roads.

The defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Ralph M. Moody and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

T T. Thorne, of Rocky Mount, for defendant.

STACY Chief Justice.

The question for decision is whether the record supports the judgment.

The warrant, as originally drawn, charges an assault on a female, and no more. There is no allegation that a deadly weapon was used or that any serious damage was done. Nor was it alleged that the defendant is a 'man or boy over eighteen years old. ' G.S. s 14-33. It is this warrant to which the verdict speaks. The subsequent amendment relating to the age of the defendant was not before the jury, and the verdict is silent on the subject of the amendment. Just the reverse was true in State v. Lewis, 224 N.C. 774, 32 S.E.2d 334.

It is the contention of the defendant that the punishment in such a case is restricted to a fine of not more than $50 or imprisonment not in excess of 30 days. State v. Nash, 109 N.C. 824, 13 S.E. 874.

Speaking to a similar situation in State v. Lefler, 202 N.C. 700, 163 S.E. 873, 874, Adams, J., delivering the opinion of the Court, said: 'To justify the sentence imposed (imprisonment for a term of twelve months) the defendant must been over the age of 18 years, and as to this there is no finding by the jury. If he was over 18 years of age, the punishment would not be restricted to a fine of $50 or imprisonment not exceeding 30 days, although a deadly weapon was not used and serious injury was not inflicted. In the absence of a finding as to the defendant's age, we must award a new trial.'

It will be noted that in the Lefler case, the indictment was for an assault on a female resulting in serious and permanent injury. Under such a bill and the record there presented, it was permissible to convict the defendant of 'a less degree of the same crime * * * charged '. G.S. s 15-170, which would include an assault on a female by a man or boy over 18 years old, as well as by a boy under that age or by a female of any age. A bill for a more serious offense is regarded as containing charges of all 'less degrees' of the same crime, without specifying the elements of these 'less degrees'. Hence, speaking to a bill which charged a more serious offense, it was said that the elements of the 'less degrees' of the same crime need not be alleged, albeit the jury would be required to find the degree of the crime in its verdict. State v. Bentley, 223 N.C. 563, 27 S.E.2d 738.

Here, the verdict pronounces the defendant guilty of an assault on a female, simpliciter. No deadly weapon was used and no serious damage was done. Whether the permissible punishment is restricted, or in the discretion of the court, depends upon the age and sex of the defendant. These must appear in order to support a judgment as for an aggravated assault. State v. Smith, 157 N.C. 578, 72 S.E. 853. When a defendant is convicted of an assault and there are circumstances of aggravation, and the circumstances of aggravation are that the defendant is a man or boy over 18 years of age and the assaulted person is a female, the punishment for the offense may be by fine or imprisonment, or both, at the discretion of the court. G.S. s 14-33; State v. Bentley, supra. True, there is a presumption that the defendant was over 18 years of age. State v. Herring, 226 N.C. 213, 37 S.E.2d 319, but this is only a presumption. State v. Lefler, supra.

Generally, in charges of assault or assault and battery with varying degrees of aggravation, the jury may concict of the assault or assault and battery and acquit, in whole or in part, of the circumstances of...