State v. Morgan

• Decision Date: 31 October 1945
• Docket Number: 292
• Citation: 35 S.E.2d 621,225 N.C. 549
• Parties: STATE v. MORGAN.
• Court: North Carolina Supreme Court

35 S.E.2d 621

225 N.C. 549

STATE v. MORGAN.

No. 292

Supreme Court of North Carolina

October 31, 1945

The defendant was tried upon a bill of indictment which charged that Gerald L. Morgan unlawfully, wilfully and feloniously did commit an assault upon one Margaret Wilkinson, a female with intent to commit rape upon her by force and against her will, and the jury returned a verdict of guilty of an assault on a female, he being a male person over the age of 18 years, and from judgment of imprisonment for 18 months, predicated on the verdict, the defendant appealed assigning errors.

Charles L. Abernethy, Jr., of New Bern, for defendant appellant.

Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes, Ralph M Moody, and J. E. Tucker, Asst. Attys. Gen., for the State.

SCHENCK Justice.

The State's evidence was sufficient to carry the case to the jury upon the charge contained in the bill of indictment but the jury returned a verdict of guilty of a less degree of the offense charged, namely, an assault upon a female the defendant being a male person over 18 years of age. Such verdict was authorized by G.S. s 15-170.

The brief of the defendant does not comply with Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562, 563 in that such brief does not contain properly numbered the assignments of error with reference to printed pages of transcript. However we have endeavored to consider the assignments of error which it appears the defendant intended to make. The first of such assignments seems to be the failure of the Court to continue the case on account of the absence of the Solicitor. It appears that the minutes of the first day of Court as first written recited the Solicitor was present prosecuting for the State, but on the second day of the Court the judge presiding discovered the error and in his own proper handwriting altered the minutes so as to read that in the absence of the Solicitor the Court appointed Messrs. Nunn and Lansche of the local bar to prosecute for the State. The power to correct the minutes and records to make them speak the truth was within the discretion of the judge holding the Court, State v. Swepson, 84 N.C. 827; State v. Warren, 95 N.C. 674, and in addition the record does not disclose that any exception to the action of the judge in making such correction was noted. His Honor likewise had authority in the absence of the Solicitor to appoint members of the local bar to act for the Solicitor in the prosecution of the case. State v. Cameron, 121 N.C. 572, 28 S.E. 139; State v. Conly, 130 N.C. 683, 41 S.E. 534; State v. Wood, 175 N.C. 809, 819, 95 S.E. 1050. If the defendant suffered the loss of any rights on account of the absence of the Solicitor they were waived by his failure to assert them in due time. The only objection made by the defendant...