State v. Phillips
| Decision Date | 25 November 1889 |
| Citation | 10 S.E. 463,104 N.C. 786 |
| Parties | STATE v. PHILLIPS et al. |
| Court | North Carolina Supreme Court |
This was an indictment for an assault and battery, tried at the January term, 1889, of the superior court of Robeson county before J. H. MERRIMON, Judge.
There were two counts in the indictment. The charge of the first count was "that Eli Phillips and Daniel Phillips, *** in and upon one W. R. Batten, with a certain deadly weapon to-wit, with a club, unlawfully," etc. In the second count, it was charged "that said Eli and Daniel Phillips, on the day and year aforesaid, *** in and upon one W. R. Batten, unlawfully and willfully did make an assault and him, the said W. R. Batten, then and there did beat and wound, and thereby seriously damage and injure, against the form of the statute in such case made and provided, and against the peace and dignity of the state." This indictment was found within less than six months after the assault was committed. But it was admitted, also, that previous to the finding of this indictment the defendants had been tried, convicted, and punished by the payment of a fine of $30 and costs, on a charge of a simple assault for the same offense for which they were tried in this case. The defendants pleaded former conviction of a simple assault before said justice of the peace, and "Not guilty." The court refused to give the special instructions asked for by defendants' counsel, to which defendants excepted. The court charged the jury that if they believed that Batten was injured by defendants, as testified to by himself, Bryan, and the other witnesses, they should find the defendants guilty. Verdict of guilty. The defendants moved in arrest of judgment, because the second count in the bill, to which alone the testimony was applicable, was defective, in that the extent of the injury done to Batten was not therein alleged. The court refused to arrest the judgment, stating to counsel that in its opinion the first count was sufficient to sustain the verdict; that there was enough alleged in the first count to give the superior court jurisdiction, and the variance between the allegations of the first count and the proof was, at most, merely technical; that the evidence sustained the first count in its general design and purport and this was enough; that it was clear that the justice of the peace had no jurisdiction, and that his proceeding in the case amounted to nothing. Exception by defendants. The court gave judgment against the defendants, and they appealed. Code N.C. § 892, provides that "justices of the peace shall have exclusive original jurisdiction of all assaults, assaults and batteries, and affrays, where no deadly weapon is used, and no serious damage is done: *** provided, *** that nothing in this section shall prevent the superior, inferior, or criminal courts from *** assuming jurisdiction, *** if some justice of the peace, within six months after the commission of the offense, shall not have proceeded to take official cognizance of the same." The evidence, prayer for instructions, and exceptions are sufficiently stated in the opinion of the court.
Where there are two counts in an indictment, drawn to meet different phases of the same transaction, the prosecution need not elect on which count a conviction will be asked.
W. F. French, for appellants.
The Attorney General and John Devereux, Jr., for the State.
AVERY J., (after stating the facts substantially as above.)
The defendants moved the court, at the close of the evidence for the state, to compel the prosecutor to elect upon which count a conviction would be asked. The court declined to grant the motion, because it was apparent that the two counts were drawn to meet the different phases of the same transaction. In this ruling there was no error. State v. Morrison, 85 N.C. 561; State v. Parish, ante, 457, (decided at this term.)
It being admitted that the indictment was found within six months after the offense was committed, the defendants insist that the superior court did not have jurisdiction, because in the first count the description of the instrument used is not such that the court can determine that it was a deadly weapon, and the nature of the injury is not set forth in the second count. If the court can neither conclude upon the face of the indictment that the weapon described in the first count was one that would probably produce death when used offensively, nor that the injury, as charged in the second count, was of a serious nature, then there was a want of jurisdiction. State v. Russell, 91 N.C. 624; State v. Porter, 101 N.C. 713, 7 S.E. Rep. 902. In the latter case, the court say: "The present indictment...
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