State v. Jones, 367

• Decision Date: 07 November 1962
• Docket Number: No. 367,367
• Citation: 258 N.C. 89,128 S.E.2d 1
• Court: North Carolina Supreme Court
• Parties: STATE, v. Lex JONES.

Page 1

128 S.E.2d 1

258 N.C. 89

STATE, v. Lex JONES.

No. 367

Supreme Court of North Carolina.

Nov. 7, 1962

William T. Watkins, Oxford, for defendant-appellant.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

HIGGINS, Justice.

The indictment was drawn under G.S. § 14-32: 'Any person who assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony * * *.'

The defendant's Assignment of Error No. 4 challenges the trial court's charge defining serious injury: 'I instruct you in this case if you find beyond a reasonable doubt the assault was made with a gun under such circumstances as calculated to create a breach of the peace that would outrage the sensibilities of the community, it would be an assault with a deadly weapon inflicting serious injury.'

The idea and some of the language are traceable to Justice Merrimon's opinion in State v. Huntley, 91 N.C. 617. In that case the Court had before it for review a special verdict finding the defendant, with an ordinary switch not larger than a little finger, gave his wife not more than 20 licks, breaking the skin, raising welts, and drawing blood, but 'the said Rachel was not so injured as to prevent her from going about and doing as usual.' Prior to the indictment, a justice of the peace had attempted to take final jurisdiction and dispose of the case upon the ground that no deadly weapon was used and no serious damage done. (emphasis added) At the time State v. Huntley, supra, was tried, punishment in assault cases was fixed by the Code of North Carolina, § 987: 'In all cases of assault, with or without intent to kill or injure, the person convicted shall be punished by a fine or imprisonment, or both, at the discretion of the court; Provided, that where no deadly weapon has been used and no serious damage done, the punishment in assaults, assaults and batteries, and affrays, shall not exceed a fine of fifty dollars or imprisonment for thirty days; but this proviso shall not apply to cases of assault with intent to kill or with intent to commit rape.' In 1911, Chapter 193, Public Laws, also withdrew from the jurisdiction of the justices of the peace, 'Assault or assault and battery by any man or boy over 18 years old on any female person.' The section above quoted, now G.S. § 14-33, deals with punishment for various types of assault--all common law offenses.

However, in 1919, Chapter 101, Public Laws, now G.S. § 14-32, the General Assembly created a new criminal offense. Following passage of the Act, this Court, in defining the term 'inflict serious injury not resulting in death,' not infrequently reverted to the definition 'of serious damage done' as if the two expressions were synonymous. State v. Plemmons, 230 N.C. 56, 52 S.E.2d 10; State v. Gregory, 223 N.C. 415, 27 S.E.2d 140; State v. Hefner, 199 N.C. 778, 155 S.E. 879; State v. Strickland, 192 N.C. 253, 134 S.E. 850.

'Serious damage done' in assault cases withdraws jurisdiction from a justice of the peace. The term embraces results other than those arising from the use of a deadly weapon. If such a weapon is used, jurisdiction is withdrawn. Likewise, if serious demage is done, jurisdiction is also withdrawn. Serious damage, of course, includes serious physical injury. But it may include damage other than bodily injury. An assailant may roll the victim in the mud, ruin his best Sunday suit, break his glasses, and destroy his watch. This 'serious damage done' removes jurisdiction of the case from a justice...