State v. Lancaster

• Decision Date: 10 March 1915
• Docket Number: 162.
• Citation: 84 S.E. 529,169 N.C. 284
• Parties: STATE v. LANCASTER ET AL.
• Court: North Carolina Supreme Court

84 S.E. 529

169 N.C. 284

STATE v. LANCASTER ET AL.

No. 162.

Supreme Court of North Carolina

March 10, 1915

Appeal from Superior Court, Craven County; Peebles, Judge.

James Lancaster and Richard Parker were indicted for an affray. From the action of the court in quashing the indictment as to Parker and dismissing as to him, the State appeals. Reversed.

An affray is cognizable in the superior court as to both defendants, where a deadly weapon was used by either.

The Attorney General, for the State.

D. E Henderson, of Newbern, for appellee.

CLARK C.J.

The defendants were indicted for an affray. The indictment charged that the defendants--

"did willfully and unlawfully assemble together, and did mutually assault and beat each other, Richard Parker by using language calculated and intended to bring on a fight and a fight ensuing, and James Lancaster using a deadly weapon, to wit, a gun, and to, with, and against each other in a public place did fight and make an affray," etc.

The court, on his own motion, quashed the indictment as to Parker and dismissed the action as to him, from which decision the state appealed. Rev. § 3276 (3).

In State v. Fanning, 94 N.C. 940, 55 Am. Rep. 653, the defendants were indicted for an affray, and it was held that if a person, by such abusive language or offensive conduct towards another as is calculated and intended to bring on a fight, induces that other to strike him, he is guilty although he did not return the blow. To same purport State v. Davis, 80 N.C. 351, 30 Am. Rep. 86; State v. Robbins, 78 N.C. 431; State v Downing, 74 N.C. 184; State v. Perry, 50 N.C. 9, 69 Am. Dec. 768. Here the charge is "did mutually assault and beat each other."

In State v. Griffin, 125 N.C. 692, 34 S.E. 513, it was held that the place need not be charged nor proven. The form of the indictment is sufficient. Rev. §§ 3254, 3255.

His honor seems to have been of the opinion that the defendant Parker could not be tried for the affray in the superior court, because he did not use a deadly weapon. In State v. Coppersmith, 88 N.C. 614, it is held:

"An affray is cognizable in the superior court, as to both defendants, where it appears that a deadly weapon was used by either."

This has been cited and approved. State v. Albertson, 113 N.C. 634, 18 S.E. 321. To same effect, State v. Ray, 89 N.C. 587, and cases cited to that case and to State v. Ray in the Anno. Ed.

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