State v. Tyson

• Decision Date: 20 October 1943
• Docket Number: 291.
• Citation: 27 S.E.2d 113,223 N.C. 492
• Parties: STATE v. TYSON.
• Court: North Carolina Supreme Court

27 S.E.2d 113

223 N.C. 492

STATE v. TYSON.

No. 291.

Supreme Court of North Carolina

October 20, 1943

Criminal prosecution upon an indictment charging the defendant with assault with intent to commit rape.

At the conclusion of the State's evidence, the defendant moved for judgment as of nonsuit upon the charge of assault with intent to commit rape, and tendered to the Court a plea of guilty of an assault upon a female.

The Court, being of the opinion that the State's evidence was not sufficient to warrant the submission of the case to the jury on the charge of assault upon a female with intent to commit rape, accepted the plea tendered by the defendant. Thereupon the Court found as a fact that the child, the female referred to in the bill of indictment, is nine years of age, and that the defendant is thirty-four years of age.

The Court further found: "That the assault committed by the defendant was aggravated, shocking and outrageous to the sensibilities and decencies of right-thinking citizens, as will be disclosed by the testimony in the record."

Judgment That the defendant be confined in the State's Prison for not less than eight nor more than ten years. Defendant appeals, assigning error.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Wm J. Bundy, of Greenville, for defendant.

DENNY Justice.

Defendant's only exception is to the sentence imposed as being violative of the Constitution of North Carolina, Art. 1, Section 14 and the statutes prescribing punishment for misdemeanors. The exception must be sustained.

C.S. § 4173, as amended by Pub.Laws 1927, c. 1, provides: "All misdemeanors, where a specific punishment is not prescribed shall be punished as misdemeanors at common law; but if the offense be infamous, or done in secrecy and malice, or with deceit and intent to defraud, the offender shall be punished by imprisonment in the county jail or state prison for not less than four months nor more than ten years, or shall be fined."

While his Honor found that the assault was aggravated, shocking and outrageous to the sensibilities and decencies of right-thinking citizens, the Court did not find the offense to be infamous. Moreover, we do not think the plea tendered by the defendant, and accepted by the Court, constituted a plea of guilty to an infamous offence, but, on the contrary, constituted a plea of guilty of a misdemeanor punishable as provided in C.S. § 4215.

In the case of State v. Smith, 174 N.C 804, 93 S.E. 910, 911, the defendant was tried upon a bill of indictment charging a secret assault. The evidence tended to show an aggravated assault with a deadly weapon, defendant firing twice with a pistol and slightly injuring the prosecuting witness. At the conclusion of the State's evidence, the defendant tendered a plea of guilty of assault with a deadly weapon, which plea was accepted by the State. The Court sentenced the defendant to four years imprisonment in the Penitentiary. Upon appeal this Court, in passing upon the identical question which is presented on this record, said: "The decision in McNeill's case [[[State v. McNeill, 75 N.C. 15] is epitomized in the headnotes as follows: ...