State v. Kline

• Decision Date: 30 September 1925
• Docket Number: 83.
• Citation: 129 S.E. 417,190 N.C. 177
• Parties: STATE v. KLINE.
• Court: North Carolina Supreme Court

129 S.E. 417

190 N.C. 177

STATE v. KLINE.

No. 83.

Supreme Court of North Carolina

September 30, 1925

Appeal from Superior Court, Lee County; Bond, Judge.

Victor Kline was convicted of malicious, secret assault, in violation of C. S. § 4213, and, from an adverse verdict and sentence of three years in state's prison, he appeals. New trial.

Essentials to conviction for malicious, "secret assault" under statute stated.

A. A F. Seawell, of Sanford, W. D. Siler, of Pittsboro, and H. F Seawell, of Carthage, for appellant.

Attorney General Brummitt and Assistant Attorney General Nash, for the State.

STACY C.J.

The statute under which the defendant was indicted and convicted provides that, if any person shall commit an assault and battery upon another (1) maliciously, (2) with a deadly weapon, (3) in a secret manner, by waylaying or otherwise notwithstanding the person so assaulted may have been conscious of the presence of his adversary, (4) with intent to kill such other person, he shall be guilty of a felony, and shall be punishable by imprisonment in jail or in the penitentiary (state's prison) for not less than 12 months nor more than 20 years, or by a fine of not exceeding $2,000, or both, in the discretion of the court. C. S. § 4213. In order to warrant a conviction under the statute, all of the essential elements of the crime must be proved by competent evidence (State v. Crisp, 188 N.C. 800, 125 S.E. 543), and the burden is on the state to establish the defendant's guilt beyond a reasonable doubt, where a plea of "not guilty" is entered, as was done in the instant case. State v. Redditt, 189 N.C. 176, 126 S.E. 506; Speas v. Bank, 188 N.C. 527, 125 S.E. 398.

It appears that on the night of April 22, 1925, the prosecuting witness, Truby Proctor, was visiting at the home of J. F. Wicker, near Colon, in Lee county. While there, some one secreted himself in the rear of his automobile. The prosecuting witness left about 10 o'clock, and was driving towards the public highway from the Wicker house, when the person in the rear of the car struck him over the head with an iron bar, inflicting serious injury upon him. Proctor testified that in the scuffle which followed, partly in the light of the automobile, he recognized the defendant as his assailant; that the defendant left the car, ran down the road, across the field, and towards the woods.

The defendant testified that he was at the home of Mr. R. S. Kelly on the night in question; that he roomed there; that he knew nothing of the occurrence until about 1 or 1:30 o'clock that night, when he was aroused from his bed and charged with the offense.

The evidence was plenary on both sides. It was sufficient on behalf of the state to warrant a conviction and on behalf of the defendant to warrant an acquittal. The case was peculiarly one for the jury under proper instructions from the court.

The following paragraph, taken from the judge's charge, forms the basis of one of the defendant's exceptive assignments of error:

"Take the case--it is important. If the evidence is believed, it was a terrible wrong which was done this young man, and a cold-blooded, cruel assault was committed upon him. On the other hand, it is highly important to the prisoner that no mistake be made. It is for you to say how you find the facts to be from the evidence in the case. Take the case, give it a fair and impartial trial, fair to both sides, recollecting all the evidence, and recollecting the contentions of counsel, the different arguments made for the defendant, and, after a proper consideration of all of it, return your verdict, and say whether you find, or not, under the instructions I have given you as to the burden of proof, the defendant is guilty or not guilty."

We think this instruction must be held for error on the present record. It would seem to be objectionable in two respects.

In the first place, the characterization of the assault and battery as a "terrible...