State v. Barham

110 S.E.2d 894 (1959)

251 N.C. 207

STATE v. Leonard BARHAM.

No. 362.

Supreme Court of North Carolina.

November 11, 1959.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. T. W. Bruton, for the State.

W. M. Nicholson, James B. Ledford, L. Glen Ledford, Charlotte, and James J. Randleman, Elkin, for defendant.

DENNY, Justice.

The defendant assigns as error, that the court failed to give equal stress to the contentions of the defendant as compared to those of the State. An examination of the charge leads us to the conclusion that the assignment of error is not supported by the record. Hence, it is overruled. State v. Adams, 245 N.C. 344, 95 S.E.2d 902; State v. Morgan, 245 N.C. 215, 95 S.E.2d 507.

In a civil action an appeal constitutes an exception to the judgment rendered and *896 raises two questions: (1) Do the facts support the judgment, and (2) does any error in law appear upon the face of the record? City of Goldsboro v. Atlantic Coast Line Railroad, 246 N.C. 101, 97 S.E.2d 486; Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592; Moore v. Crosswell, 240 N.C. 473, 82 S.E.2d 208; Gibson v. Central Mfrs' Mut. Insurance Co., 232 N.C. 712, 62 S.E.2d 320.

Likewise, in a criminal case an appeal itself is an exception to the judgment, and if the judgment is regular in form and within the limits of the statute and is predicated upon a verdict sufficient to support it, such judgment will be upheld. State v. Ayscue, 240 N.C. 196, 81 S.E.2d 403; State v. Sloan, 238 N.C. 672, 78 S.E.2d 738. It follows, as a matter of course, that if the verdict is not sufficient to support the judgment it will not be upheld.

It will be noted that the warrant in case No. 3454 does not charge the defendant with an assault on a female. However, the evidence discloses that Mae Davis is the mother-in-law of Harvey T. Gupton, the prosecuting witness in case No. 3453. Moreover, she testified in behalf of the State in the trial below and the judge charged the jury as follows: "As to case # 3454, against Leonard Barham, I instruct you that if you find from the evidence and beyond a reasonable doubt, the burden being on the State to so satisfy you that on the 23rd day of February, 1959, that Leonard Barham by turning the car over in which Mae Davis was riding, thereby committed an assault on the prosecuting witness Mae Davis, and that she is a female person, as I have heretofore defined the offense of assault to you, then it will be your duty to render a verdict of guilty against the defendant Leonard Barham, for an assault on a female, if you are satisfied beyond a reasonable doubt that the defendant is over the age of 18 years. If you fail to so find, it will be your duty to render a verdict of not guilty. * * *"

In the case of State v. Courtney, 248 N.C. 447, 103 S.E.2d 861, 863, the defendant was tried upon a bill of indictment charging that on the 7th day of November, 1957, he "did unlawfully, wilfully, and feloniously rape, ravish and carnally know Shirley Allen, a female, forcibly and against her will," etc. The defendant was tried at the December 2, 1957 Regular Term of the Superior Court of Mecklenburg County and the jury returned a verdict of "guilty of an assault on a female." The defendant testified in the course of the trial that he was at that time nineteen years of age. We upheld the verdict.

In the present case, notwithstanding the instruction of the trial judge to the effect that if the jury found from the evidence and beyond a reasonable doubt that the defendant committed an assault on Mae Davis, "and that she is a female person * * * then it will be your duty to render a verdict of guilty against the defendant Leonard Barham, for an assault on a female, if you are satisfied beyond a reasonable doubt that the defendant is over the age of 18 years, * * *" the jury did not return a verdict of guilty of an assault on a female, but returned a verdict that the defendant Leonard Barham "is guilty as charged in each of the separate warrants."

Since the warrant in case No. 3454 fails to charge an assault on a female, as provided in G.S. § 14-33, and the evidence discloses that no serious injuries were inflicted on Mae Davis, the prosecuting witness, the punishment that may be imposed on the verdict in this case may not exceed "a fine of Fifty Dollars ($50.00) or imprisonment for thirty days." Therefore, the Court ex mero motu remands case No. 3454 for proper judgment.

In cases Nos. 3452 and 3453No Error; in case No. 3454Remanded for proper judgment.

HIGGINS, J., not sitting.