State v. Harris

• Citation: 120 N.C. 577,26 S.E. 774
• Court: United States State Supreme Court of North Carolina
• Decision Date: 09 March 1897
• Parties: STATE. v. HARRIS.

26 S.E. 774

120 N.C. 577

STATE.

v.HARRIS.

Supreme Court of North Carolina.

March 9, 1897.

Secret Assault—Exceptions—When Taken.

1. An exception that there is not sufficient evidence to go to the jury must be taken before verdict.

2. Exceptions for omission to charge must be before verdict, though for error in the charge they may be taken within 10 days after adjournment.

3. An assault made from behind, and in a manner to prevent the person assaulted know ing who his assailant was, or that the blow was about to be struck, is a secret assault.

Appeal from superior court, Granville county; McIver, Judge.

Henry Harris was convicted under an indictment charging a secret assault with a deadly weapon. His motion for a new trial on the ground that there was not sufficient evidence to go to the jury that the assault was made in a secret manner, with intent to kill, was denied, and he appeals from judgment pronounced. Affirmed.

Defendant admitted the assault, but denied it was made in a secret manner, or with intent to kill. The prosecuting witness testified that he was in conversation with one Albert Harris when he was struck, and did not see the defendant, or know who hit him. He had no warning, and was knocked down insensible. It was also in evidence, by another witness, that defendant struck prosecutor with a large stick, from behind. Defendant testified in his own behalf that he did not strike with the stick described by the other witness, but did strike with the stick he then held in his hand (which was shown to the court and jury), and was standing behind the prosecutor, and gave no notice when the assault was made. The court charged the jury that they must be fully satisfied the assault was made in a secret manner and with intent to kill, and if from the testimony they were satisfied beyond a reasonable doubt that it was made from behind, and in such manner as to prevent prosecutor from knowing who his assailant was, and that the blow was about to be stricken, then it was a secret assault; and if they were satisfied beyond a reasonable doubt that the ordinary consequence of such a blow was to produce death, then the law presumed the intent to kill, and they should convict, otherwise they should acquit, the defendant. Verdict of guilty.

Jos. B. Batchelor, for appellant.

Attorney General Walser, Winston & Fuller, and J. C. Biggs, for the State.

CLARK, J. "An exception that there is not sufficient evidence to go to the jury must always be made before verdict, in order that the defect can be supplied if possible, " for the sole object of judicial investigation is to ascertain the truth of the matter at issue. Sutton v. Walters, 118 N. C. 500, 24 S. E. 357; Holden v. Strickland, 116 N. C. 190, 21 S. E. 684; State v. Hart, 116 N. C. 976, 20 S. E. 1014; State v. Kiger, 115 N. C. 746, 20 S. E. 456; Wilson Cotton Mills v. C. C. Randleman Cotton Mills, 115 N. C. 485, 20 S. E. 770; State v. Varner, 115 N. C. 744, 20 S. E. 518; Fagg v. Association, 113 N. C. 364, 18 S. E. 655; McMillan v. Gambill, 106 N. C. 359, 11 S. E. 273; State v. Braddy, 104 N. C. 737, 10 S. E. 261: Battle v. Mayo, 102 N. C. 413, 438, 9 S. E. 384; Sugg v. Watson, 101 N. C. 188, 7 S. E. 709; Lawrence v. Hes-ter, 93 N. C. 79; State v. Glisson, Id. 506; State v. Keath, 83 N. C. 62G; State v. Jones, 69 N. C. 16. The matter seems adjudicated, and is decisive of this case. It is true that exceptions for error in the charge may be taken, specifically, if made within 10 days after the adjournment of the court. Lowe v. Elliott, 107 N. C. 718, 12 S. E. 383; State v. Varner, 115 N. C. 744, 20 S. E. 518; Blackburn v. Insurance Co., 116 N. C. 826, 21 S. E. 922; Clark's Code (2d Ed.) p. 383. But it is...