State v. Currence , 14 N.C. App. 263 ( 1972 )

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188 S.E.2d 10 (1972) 14 N.C.App. 263
STATE of North Carolina
v.
William Edward CURRENCE.
No. 7226SC95.
Court of Appeals of North Carolina.
April 26, 1972. Certiorari Denied and Appeal Dismissed May 24, 1972.
*11 Atty. Gen. Robert Morgan by Associate Atty. Gen. George W. Boylan for the State.

John B. Whitley, Charlotte, for defendant appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court May 24, 1972.

GRAHAM, Judge.

Defendant assigns as error the court's refusal to accept the first verdict announced by the jury.

While a verdict is not complete until accepted by the court, if the jury returns a verdict that is permissible under the charge and complete in itself, the court must accept it. State v. Sumner, 269 N.C. 555, 153 S.E.2d 111. "When, and only *12 when, an incomplete, imperfect, insensible, or repugnant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict." State v. Hemphill, 273 N.C. 388, 390, 160 S.E.2d 53, 55.

The question presented here is whether the jury's verdict purporting to find defendant guilty of "attempted assault with a deadly weapon" was complete in itself. We hold that it was not.

The crime of assault is governed by common law rules and the common law offense of assault is generally defined as "`an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace or violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.'" State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305.

The effect of the first verdict returned by the jury was to find defendant guilty of an "attempt to attempt." "[O]ne cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt." State v. Hewett, 158 N.C. 627, 629, 74 S.E. 356, 357. Thus, a finding of "guilty of attempted assault" was not responsive to the indictment. It constituted an incomplete verdict in that it would not support a judgment, and His Honor was correct in rejecting the verdict and directing the jury to reconsider the matter.

Defendant contends that if the court were correct in rejecting the verdict, error was nevertheless committed in permitting the jury to reconsider all of the five possible verdicts. He argues that the verdict first announced amounted to a clear acquittal of those offenses requiring a finding of "intent to kill" or inflicting serious injury. Even if there be merit in this argument, we fail to see wherein defendant has been prejudiced for he has not been convicted of an offense containing either of these two elements.

No error.

CAMPBELL and BRITT, JJ., concur.