State v. Hobbs
| Decision Date | 16 June 1939 |
| Docket Number | 579. |
| Citation | 3 S.E.2d 431,216 N.C. 14 |
| Parties | STATE v. HOBBS. |
| Court | North Carolina Supreme Court |
C P. Barringer, of Salisbury, for appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach Asst. Attys. Gen., for the State.
The defendant appealed from a conviction upon a warrant in the Anson County Criminal Court, and was tried and convicted in the Superior Court upon the same warrant which charged that the defendant "did unlawfully, wilfully and feloniously assault Willard Jackson with a deadly weapon, to-wit, a brick." From judgment of imprisonment imposed in the Superior Court defendant appealed to the Supreme Court assigning errors.
The defendant assigns as error the refusal of the court to grant his motion for judgment of nonsuit made when the State had produced its evidence and rested its case and renewed after all the evidence in the case was concluded. C.S. § 4643. These assignments of error cannot be sustained.
The prosecuting witness, Willard Jackson, testified that on the night of the alleged offense, November 21, 1938, while he was driving an oil truck on the public highway between Wilmington and Charlotte he recognized the defendant, that he saw him in company with another man whom he did not recognize, that The witness W. K. Barnes, who was driving another oil truck just in front of the truck driven by Jackson, testified that he saw and recognized the defendant in a black Ford sedan twice, once in Lumberton and once near Rockingham, and that the defendant cursed and threatened him. This evidence was sufficient to deny the defendant's motion for a nonsuit.
We do not concur in the contention that since the evidence was that the missile thrown was "a brick or a rock or what" and the charge in the warrant was an assault with a "deadly weapon, to-wit, a brick", was a fatal variance between probata and allegata. C.S. § 4623, provides that "Every criminal proceeding by warrant, indictment information, or impeachment is sufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligible, and explicit manner ***." The evidence we think, and so hold, was sufficient to justify the jury in drawing the inference that the assault was committed with a brick as charged, and the warrant was sufficient to enable the court to proceed to judgment. There was nothing in the evidence to take the defendant by surprise in the light of the charge in the warrant, and this is especially so since the defendant's defense was that of an alibi.
The defendant lays much stress upon exceptions to the court's suspending the trial after the evidence had been closed and while the argument was in progress, to allow the State to procure additional witnesses from another county, and allowing them to testify the following morning upon the reconvening of court. A similar exception was disposed of by Stacy, C. J., in State v. Satterfield, 207 N.C. 118, 176 S.E. 466, 468, with these words: "Likewise, allowing the solicitor to offer additional evidence, after the argument had begun, was a matter addressed to the sound discretion of the trial court, and there is nothing on the record to suggest any abuse of discretion in this respect." The same discretion which allows the court to permit the solicitor upon a motion to introduce additional evidence after argument begun, allows the court of its own motion to permit additional evidence to be procured and introduced upon such evidence being brought to the attention of the court, when the solicitor had no knowledge of such evidence.
The defendant assigns as error the refusal of the court to grant his motion...
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