State v. Porter
| Decision Date | 26 November 1888 |
| Citation | 7 S.E. 902,101 N.C. 713 |
| Court | North Carolina Supreme Court |
| Parties | State v. Porter. |
Under Code N. C. § 892, restricting the jurisdiction of the superior courts to punish for assault and battery, where no deadly weapon is used and no serious damage done, to cases where justices of the peace neglect for six mouths to take official cognizance of the offense, where it appears from the evidence, in a trial before a superior court, that the offense is one of the said class, and was committed within six months before the action was begun, the prosecution must be dismissed.
An indictment which charges that the battery was committed " with a deadly weapon, to-wit, a certain stick, to the great damage " of the person assaulted, is not sufficiently specific as to the character of the weapon, or the extent of the damage, to give the superior court jurisdiction under said statute, when the offense was committed less than six months before the finding of the indictment.
Appeal from superior court, Wilkes county; Clark, Judge.
Indictment of A. R. Porter for assault and battery. Defendant was found guilty, and appeals. 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 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 Attorney General, for the State.
The defendant is charged by the finding of the grand jury at spring term, 1888, of the superior court of Wilkes county, in an indictment of the following form: "The jurors for the state upon their oath present that A. R. Porter, in Wilkes county, on the 1st day of December, 1887, did unlawfully and willfully assault, beat, and wound one Candice Porter, with a deadly weapon, to-wit, a certain stick, to the great damage of the said Candice Porter, contrary to the statute in such cases made and provided, andagainst the peace and dignity of the state." Upon Ins arraignment and entering his plea of not guilty, he was put on trial before the jury, and convicted. Thereupon his counsel submitted motions for a new trial, and in arrest of judgment, both of which were denied, and, judgment being rendered on the verdict, he appeals. The time when the assault was made was proved to be in December preceding, and less than six months before, the finding of the indictment. The indictment, as will be seen, is in the ordinary form, and in no way indicates the existence of the marital relation which existed between the parties to the assault. Its form must therefore be considered as if they were indifferent persons. It has been repeatedly decided that, to give the superior court jurisdiction under the statute distributing the judicial power over smaller offenses between the superior and the justices' courts, (Code, § 892,) it is not necessary, to the former's taking cognizance of such as the justices fail to assume jurisdiction over for the period of six months, to aver the fact of this omission in the indictment itself, and that this is matter of defense upon the trial. State v. Moore, 82 N. C. 659; State v. Taylor, 83 N C. 601. Nor is it material that the offense is alleged in the indictment itself to have been committed on a day more than six months before the finding of the indictment itself, as the date is not traversable, and is not fixed by the verdict. If, however, as was said by the court in a recent case, ...
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State v. Watkins
...87 S.E. 416, 417. See, also, State v. Hefner, 199 N.C. 778, 155 S.E. 879; State v. Phillips, 104 N.C. 786, 10 S.E. 463; State v. Porter, 101 N.C. 713, 7 S.E. 902; v. Collins, 30 N.C. 407. There are other exceptions appearing on the record worthy of consideration, but, as they are not likely......
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State v. Perry
... ... the facts and circumstances, it became a question for the ... jury with proper instructions from the court.' State ... v. Beal, 170 N.C. 764, 87 S.E. 416. See, also, State ... v. Hefner, 199 N.C. 778, 155 S.E. 879; State v ... Phillips, 104 N.C. 786, 10 S.E. 463; State v ... Porter, 101 N.C. 713, 7 S.E. 902; State v ... Collins, 30 N.C. 407.' ... [226 ... N.C. 536] In the instant case, under the evidence, we think ... his Honor would have been justified in holding as a matter of ... law that the manner in which the defendant used the brick, it ... ...
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State v. Richardson
...degree of specificity. On the contrary, Palmer specifically overruled the Supreme Court's prior decision in State v. Porter, 101 N.C. 713, 716, 7 S.E. 902, 903–04 (1888), in which the Court had held that the object utilized in an assault had to be both named and specifically described. Palm......
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State v. Wiggs, 499
...ex vi termini, it is sufficient to describe it by its name, without alleging that it was a deadly or dangerous weapon.' In State v. Porter, 101 N.C. 713, 7 S.E. 902, it was held that, to sustain an indictment as sufficiently charging an assault with a deadly weapon, it must appear From the ......