State v. Robinson , 13 N.C. App. 628 ( 1972 )

HEDRICK, Judge.

The question presented by the defendant’s one assignment of error is whether the verdict supports the judgment.

G.S. 14-32 (a), prior to the amendment effective 1 October 1971, provided:

“Any person who assaults another person with a firearm or other deadly weapon of any kind with intent to kill and inflict serious injury is guilty of a felony punishable under G.S. 14-2.”

G.S. 14-32 (b), prior to the amendment effective 1 October 1971, provided:

“Any person who assaults another person with a firearm or other deadly weapon per se and inflicts serious injury is guilty of a felony punishable by a fine or imprisonment for not more than five years, or both such fine and imprisonment.”

G.S. 14-33 (b) (1) and (3), prior to the amendment effective 1 October 1971, provided:

“ (b) Unless Ms conduct is covered under some other provision of law providing greater punishment, any person who commits any aggravated assault, assault and battery, or affray is guilty of a misdemeanor punishable as provided in subsection (c) below. A person commits an aggravated assault or assault and battery if in the course of such assault or assault and battery he:

(1)Uses a deadly weapon or other means or force likely to inflict serious injury or serious damage to another person; or

* * *

(3) Intends to kill another person. ...”

G.S. 14-33 (c), prior to the amendment effective 1 October 1971, provided:

“ (c) Any aggravated assault, assault and battery, or affray is punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment not to exceed six (6) months, or both such fine and imprisonment if the offense is aggravated because of one of the following factors:

(1) Inflicting serious damage to another person;

(2) Assaulting a female, by a male person; or

(3) Assaulting a child under the age of twelve (12) years.

Any other aggravated assault, assault and battery, or affray is punishable by a fine in the discretion of the court, imprisonment not to exceed two (2) years, or both such fine and imprisonment.”

The element of inflicting serious injury common to the offense described in G.S. 14-32 (a) and (b) is not an element of the offense described in G.S. 14-33 (b) (1) and (3). The jury, by omitting the element of inflicting serious injury from its verdict, in effect, found the defendant guilty of an aggravated assault with a deadly weapon with intent to kill, a misdemeanor punishable by a fine in the discretion of the court, imprisonment not to exceed two years, or both such fine and imprisonment, as provided by G.S. 14-33 (c). State v. Gregory, 223 N.C. 415, 27 S.E. 2d 140 (1943); State v. Burris, 3 N.C. App. 35, 164 S.E. 2d 52 (1968).

We hold the judgment imposing a prison sentence of five years is not supported by the verdict. The judgment is vacated and the case is remanded to the superior court for the entry of a proper judgment on the verdict.

Vacated and remanded.

Chief Judge Mallard and Judge Graham concur.