State v. Lefler, 545.

• Decision Date: 11 May 1932
• Docket Number: No. 545.,545.
• Citation: 202 N. C. 700,163 S.E. 873
• Court: North Carolina Supreme Court
• Parties: STATE. v. LEFLER.

163 S.E. 873

202 N. C. 700

STATE.

v.LEFLER.

No. 545.

Supreme Court of North Carolina.

May 11, 1932.

Appeal from Superior Court, Davie County; Clement, Judge.

Tom Lefler was convicted of simple assault, and he appeals.

Error, and a new trial awarded.

B. C. Brock, of Mocksville, for appellant.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

ADAMS, J.

The defendant was indicted for an assault and battery upon Dora Shoe, "she being a female, by throwing her foody upon the bank of South Yadkin River and thereby seriously and permanently injuring the said Dora Shoe." He was convicted of a simple assault and was sentenced to imprisonment for a term of 12 months. The indictment, it may be conceded, sufficiently charges that the defendant is a "man or boy" and that the prosecutrix is a "female person." It was not necessary to aver that the "man or boy" at the time of the assault was "over eighteen year:? old;" the age of the assailant is a matter of defense. State v. Smith, 157 N. C. 578, 72 S. E. 853, 855; State v. Jones, 181 N. C. 546, 106 S. E. 817. This does not imply, however, that the jury is not required to determine the defendant's age.

On March 8, 1911 (Pub. Laws 1911, c. 193), the General Assembly ratified an act amending section 3620 of the Revisal by adding the following clause: "Or to cases of assault or assault and battery by any man or boy over eighteen years of age on any female person." Following is the whole section: "In all cases of an assault, with or without intent to kill or injure, the person convicted shall be punished by 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, or to cases of assault or assault and battery by any man or boy over eighteen years of age on any female person."

In State v. Smith, supra, it is said: "The third proviso [the amendment of 1911] was not intended to create a separate and distinct offense in law, to be known as an as-sault and battery by a man, or a boy over 18 years old, upon a woman; but it merely excepted that case from the operation of the first proviso, hy which the punishment for a simple assault was limited to a fine of $50 or imprisonment for 30 days. It related solely to the degree of punishment for an assault committed upon a woman by a man, or by a boy over 18 years of age. It was always a crime for a man, or a boy over 18 years of age, to assault a woman, and the object of section 3620 was to provide that such an offense should be subject to the same punishment, at the discretion of the court, as any other assault, with or without intent to kill or injure, or to commit a rape, and not to deprive the court of the discretion, given by the first clause, in those...