S. v. . Apple , 121 N.C. 584 ( 1897 )

Indictment for assault and battery. The evidence tended to show that the defendant and two others assaulted the prosecuting witness while on his way home from Greensboro; that the prosecuting witness was 77 years old, and was traveling in his wagon when he was attacked by the defendant and the other two men; that they came out of the bushes on the side of the road and demanded his whiskey; that they beat him until he was unconscious, and when he came to (585) consciousness again a pint of whiskey and $2.50 he had when they attacked him were gone; that he was laid up for a month from the injuries he received from the defendant and those with him in making this assault. James Green, a witness for the State, was asked if he had ever heard defendant make threats against the prosecuting witness, Holt. This evidence was objected to, but allowed, and defendant excepted, and the witness said he had. But it was afterwards withdrawn, and the court charged the jury that they must not consider it in making up their verdict. If this was error, it seems to us that it was cured by being withdrawn and by the charge of the court.

The State introduced one Reese as a witness, who testified that he knew the general character of Mrs. Bugsby, a witness introduced by the defendant, and that it was bad. The defendant, on cross-examination, asked him what it was bad for, and he answered that "she kept a bawdy-house." Defendant objected and excepted to this.

We fail to see the force of this exception. It was his own evidence. If the defendant goes fishing in the State's waters he must take such fish as he catches.

The father and mother of the defendant were introduced as witnesses for him, and the court charged the jury that it was their duty to scrutinize this testimony, as the witnesses were nearly related to the defendant, but they could not reject it on that account; and that, after thus scrutinizing their testimony, if they believed they had sworn the truth, they should give it the same weight as if they were not related to the defendant. This ruling has been sustained so often by this Court that we hardly feel called upon to cite authority. S. v. Boon, 82 N.C. 637; S. v. Holloway,117 N.C. 730; S. v. Collins, 118 N.C. 1203.

The defendant objects and excepts to the judgment of the court as being cruel and unusual, and therefore unconstitutional. Constitution, (586) Art. I, sec. 14. But it does not seem to us that two years' imprisonment, to be worked on the roads, for such an assault as this (accompanied with robbery), is cruel or unconstitutional. S. v.Pettie, 80 N.C. 367; S. v. Miller, 94 N.C. 904. It may be, as it appears to us from the evidence, that the defendant was guilty of a higher offense than that of assault and battery.

Affirmed.

Cited: S. v. Hamby, 126 N.C. 1067; S. v. McDowell, 129 N.C. 532; S.v. Fleming, 130 N.C. 689; S. v. Ellsworth, ib., 691; Moore v. Palmer,132 N.C. 977; S. v. Graham, 133 N.C. 653; Herndon v. R. R., 162 N.C. 334.