State v. . Lee , 192 N.C. 225 ( 1926 )

ADAMS, J., concurring. It is provided by C. S., 4213, the statute under which the defendants were indicted and convicted, that if any person shall commit an assault and batter upon another (1) maliciously, (2) with a deadly weapon, (3) in a secret manner, by waylaying or otherwise, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, (4) with intent to kill such other person, he shall be guilty of a felony and shall be punishable by imprisonment in jail or in the State's prison for not less than twelve months nor more than twenty years, or by a fine of not exceeding two thousand dollars, or both, in the discretion of the court.

The prosecuting witness testified that just after dark on the night in question, he was walking along the public highway approximately sixty yards from his home, when, attracted by the growling of his dog, he looked over into the cotton patch by the road and saw the defendant, Ludlow Lee, who had previously been hiding between two rows of cotton, rise from his squatting position, with a shot gun in his hands, and fire directly at the prosecuting witness, inflicting serious and permanent injury by shooting him in the face and shoulders. Immediately thereafter he saw the defendant, Roney B. Lee, who was with Ludlow Lee at the time, and who had also been hiding in the cotton patch, rise up with gun in hand and fire in the air.

The defendants denied having anything to do with the shooting, and introduced evidence tending to show that they were elsewhere at the time.

The evidence was plenary on both sides. It was sufficient on behalf of the State to warrant a conviction, and on behalf of the defendants to warrant an acquittal. The case was peculiarly one for the jury under proper instructions from the court.

All the exceptions are directed to the charge, and while some of his Honor's expressions, standing alone, may be objectionable, yet, taken as a whole, we are constrained to believe that the charge is free from reversible error.

The charge, as has so often been said, is to be considered contextually and not disjointedly. In re Hardee, 187 N.C. 381; Milling Co. v. Highway Commission, 190 N.C. p. 697, and cases cited. Viewed in this way, we think the validity of the trial should be sustained.

There was a motion, made in this Court, to arrest the judgment because of the alleged insufficiency of the verdict, in that it does not specify of which grade of the offense charged the jury convicted the defendants, it appearing that one of four verdicts was permissible under the indictment, the evidence and the charge of the court, and the jury simply returned a verdict of "guilty."

The decisions in the several jurisdictions, having statutes similar to ours, C. S., 4640, permitting a conviction of a less degree of the same offense charged in the bill of indictment, when warranted by the evidence, are not in unison. Moody v. State, 52 Tex.Crim. Rep.; Kinchen v.State, 188 S.W. (Tex.), 1004; Estes v. State, 55 Ga. 131; Com. v. Flagg,135 Mass. 545; S. v. Smith, 18 S.C. 149; 27 R. C. L., 856. However, the exact question was decided by this Court in the case of S. v. Barnes,122 N.C. 1031, and that decision is controlling on the present record. There, Clark, J., speaking for the Court, said: "While the statute (Laws 1885, ch. 68) permits a verdict for an assault when it is embraced in the charge of a greater offense, as rape or other felony, a verdict simply of guilty and not specifying a lower offense is a verdict of guilty of the offense charged in the indictment."

On authority of the decision in Barnes' case, the motion in arrest of judgment must be overruled.

No error.