State v. Thomas , 29 N.C. App. 757 ( 1976 )

PARKER, Judge.

Defendant assigns error to the court’s refusal to strike the words “deadly weapon” from the bill of indictment. Defendant maintains his motion to delete “deadly weapon” amounted to a motion to quash for duplicity, contending the indictment charged two offenses in one count, to wit: (1) assault with a deadly weapon, a violation of G.S. 14-33 (b) (1), and (2) assault with a firearm on a police officer while such officer was in the performance of his duties, a violation of G.S. 14-34.2. We find no error in the court’s ruling in this regard. The indictment in essence charges that defendant did “assault ... a deputy sheriff .. . with a deadly weapon, to wit: a shotgun while [he was] engaged in his official duties as ,a deputy sheriff.” This clearly charges the defendant only with a violation of G.S. 14-34.2. See, State v. Norton, 14 N.C. App. 136, 187 S.E. 2d 364 (1972). G.S. 14-33 (b) expressly provides that it applies “[u]nless [defendant’s] conduct is covered under some other provision of law providing greater punishment.” G.S. 14-34.2 does provide greater punishment.

Defendant also assigns error to denial of his motion to quash the indictment for its failure to specify adequately the official duty being performed by Officer Conerly. Again, we detect no error, finding sufficient particularity in the language of the indictment which states that the officer was “engaged in his official duties as a deputy sheriff, to wit: answering a call at 309 Richmond Drive, Fayetteville, North Carolina, concerning a domestic problem.”

During his jury argument, defense counsel attempted to read G.S. 14-34.2 to the jury. The court permitted him to read only the first portion of the statute, which specifies the elements of the offense, and refused to permit him to read to the jury the portion of the statute fixing the punishment. In this there was error. “Counsel may, in his argument to the jury, in any case, read or state to the jury a statute or other rule of law relevant to such case, including the statutory -provision fixing the punishment for the offense charged.” (Emphasis added.) State v. Britt, 285 N.C. 256, 273, 204 S.E. 2d 817, 829 (1974). However, “[t]his does not mean that a defendant should be permitted to argue that because of the severity of the statutory punishment the jury ought to acquit, to question the wisdom or appropriateness of the punishment, or to state the punishment provisions incorrectly. State v. Britt, supra; State v. Dillard, 285 N.C. 72, 203 S.E. 2d 6 (1974). Nor should either the state or the defendant be allowed to speculate upon the outcome of possible appeals, paroles, executive commutations or pardons.” State v. McMorris, 290 N.C. 286, 225 S.E. 2d 553 (filed 17 June 1976).

For the error in the court’s refusing to permit defense counsel to read the punishment provision in the statute to the jury, defendant is entitled to a

New trial.

Chief Judge Brock and Judge Arnold concur.