State v. Perkins

• Decision Date: 31 January 1880
• Citation: 82 N.C. 681
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN PERKINS.

82 N.C. 681

STATE

v.JOHN PERKINS.

Supreme Court of North Carolina.

January Term, 1880.

INDICTMENT for an Assault with intent to commit rape, tried at Fall Term, 1879, of CAMDEN Superior Court, before Gudger, J.

The bill contained one count wherein the defendant is charged with making a violent and felonious assault upon the person of the prosecutrix with intent, her then and there feloniously and against her will, to ravish and carnally know, and upon the trial under instructions from the court, was found guilty of an assault only. Thereupon the defendant's counsel moved for his discharge on the ground that in an indictment for a felony there could not be a conviction for the constituent misdemeanor involved in the charge, and a verdict acquitting of the felony was in law a verdict of not guilty. The motion was refused, and the court adjudged that the defendant pay a fine of fifty dollars, and in default thereof that he be imprisoned for sixty days. The defendant excepted, for that the court erred in telling the jury if they believed the testimony the defendant was guilty of an assault, and the judgment pronounced was alternative. Appeal by defendant.

Attorney General, for the State .

Messrs. Gilliam & Gatling and J. P. Whedbee, for defendant .

SMITH, C. J.

The defendant's appeal presents two questions to be determined, first, was the defendant entitled to his discharge? and secondly, if not, was the sentence regular and legal?

1. The legal proposition, that upon a single felonious charge contained in an indictment a person cannot be convicted and punished for the misdemeanor involved, is correct upon principle and by express adjudication in this state. In State v. Durham, 72 N. C., 447, in reviewing an exception of the prisoner to the refusal of the court “to instruct the jury that if they were not satisfied of the commission of the felony as charged” (rape) “they might find the prisoner guilty of an assault and battery,” BYNUM, J., thus states the rule: “The rule of the common law is, that in an indictment for a felony, there could not be a conviction of a minor offence included within it, if such minor offence be a misdemeanor; and this is the foundation of the rule, that an acquittal of a felony is no bar to another indictment for the same act, charging it as a misdemeanor and vice versa.”--Citing 2 Hawk. P. C., ch. 17, § 6; 1 Chitty Cr. L., 251, 679; 1 Lord Ray., 711; 3 Salk., 193. It is equally well settled that if the act alleged to have been done with a felonious intent and set out in an indictment, constitute only a misdemeanor, the imputation of the felonious intent may be rejected as repugnant to the legal import of the offence described. State v. Upchurch, 9 Ired., 454; 1 Whar. Cr. L., § 400; ...