State v. Terry
| Decision Date | 24 September 1952 |
| Docket Number | No. 2,2 |
| Citation | 236 N.C. 222,72 S.E.2d 423 |
| Parties | STATE, v. TERRY. |
| Court | North Carolina Supreme Court |
Harry McMullan, Atty. Gen., and T.W.Bruton, Asst. Atty. Gen., for the State.
Robert S. Cahoon, Greensboro, for defendant, appellant.
Matters in the record on this appeal direct our attention to the petition for a writ of certiorari, filed by the defendant in apt time to bring up the record and case on appeal on his original appeal, which was denied for the reason defendant had failed to show merit or probable error in the trial. A re-examination of that petition and the exhibit attached thereto disclose that the petition does show probable error which we then inadvertently overlooked. We, therefore, upon a reconsideration of the petition for writ of certiorari, now grant the same and consider the record on this appeal as due return to the writ.
When defendant's plea of guilty was tendered and accepted by the State, the warrant charged an assault upon a female and nothing more. It contained no allegation that a deadly weapon was used or that serious damage was done or that defendant was a male person over 18 years of age. G.S. § 14-33. This is the warrant to which defendant's plea of guilty speaks.
The finding by the court that the defendant was 23 years of age at the time of the assault could not suffice to bring the defendant within the warrant as amended. Only a plea of guilty to or a jury verdict upon the warrant as amended could subject the defendant to the punishment prescribed for an assault upon a female person by a man or boy over 18 years of age. The punishment for the crime to which the defendant pled guilty is restricted to a fine of not more than $50, or imprisonment not in excess of 30 days, or both.
To justify a sentence of imprisonment for two years for a simple assault upon a female person by a man or boy, where no serious damage was done, the defendant must have been over 18 years of age, and this fact must have been asserted in the warrant and found by the jury with the other necessary elements of the crime, or established by defendant's plea of guilty. However, an exception to this rule arises when a defendant is charged with an assault on a female resulting in serious and permanent injury. In which case, the defendant could plead guilty to or be convicted of 'a less degree of the same crime charged,' which could include an assault on a female by a male person over 18 years of age. This is not the...
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State v. Courtney
...issue must be resolved by a jury, not by the court. State v. Lefler, supra; State v. Grimes, 226 N.C. 523, 39 S.E.2d 394; State v. Terry, 236 N.C. 222, 72 S.E.2d 423. And, upon the trial of such issue, the presumption that defendant was over 18 years of age at the time of the alleged assaul......
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State v. Higgins, 90
...jury, not by the court. State v. Lefler, supra [202 N.C. 700, 163 S.E. 873]; State v. Grimes, 226 N.C. 523, 39 S.E.2d 394; State v. Terry, 236 N.C. 222, 72 S.E.2d 423. And, upon the trial of such issue, the presumption that defendant was over 18 years of age at the time of the alleged assau......