Summary
In State v. Shelly, 98 N.C. 673, the opinion rested upon the ground that "the injury was not simply painful and humiliating, but disfigured the face seriously, bruised the eyes, closed (838) one of them entirely and probably permanently impaired the sight," and, therefore, that serious damage was done.
Summary of this case from State v. NashOpinion
(September Term, 1887.)
Assault — Jurisdiction — Serious Damage — Presumption — Verdict — Former Conviction.
1. Where it was shown that the defendant assaulted the prosecuting witness with his fist, knocked him down, jumped on him and beat him in a cruel manner, stunning him and badly injuring his eyes, but it did not appear that the injuries were permanent: Held, that this was "serious damage," and a justice of the peace had no jurisdiction of the offense.
2. The Superior Courts will be presumed to have acquired jurisdiction of simple assaults, and the burden is upon the defendant to show that the offense was committed within six months from the finding of the bill.
3. If the offense has been committed within six months from the finding of the bill, the indictment must allege that the assault was made with a deadly weapon, and describe it, or that serious damage was done, and set out its extent and nature.
4. A mistake in the verdict of a jury may be corrected before it is recorded and the jury discharged.
THE defendants, Mike Shelly, Delia Bryson and John Daneheart, were indicted and tried at the September Term, A.D. 1887, of the Criminal Court of NEW HANOVER, upon a charge of an assault and battery upon one Gustave Friberg. Before the jury were (674) empaneled the defendants all entered a plea of "former conviction," and also excepted to the jurisdiction of the court, alleging that no deadly weapon was used and that there was no serious damage done.
Under the plea of "former conviction" the proof was, and it was not disputed, that soon after the assault occurred all three of the defendants above named repaired to the office of one Hall, a justice of the peace, in the city of Wilmington and county of New Hanover, and that one of the defendants, to wit, John Daneheart, then and there made an affidavit, setting forth the assault, and that the aforesaid Gustave Friberg was not present, and that there was no proof before the said justice of the peace that any deadly weapon was used or serious damage done, and that the said justice of the peace had assumed final jurisdiction of the case and had rendered a judgment therein.
This assault was made upon the person of Gustave Friberg, in the kitchen of a sailor boarding-house, of which one of the defendants, Delia Bryson, is the proprietress.
The State's witness, Gustave Friberg, testified in substance that the defendant, Delia Bryson, wanted him to ship on a certain vessel, and that he refused to do so; that she and Shelly came into the kitchen and the doors were closed, and Shelly asked him if he was going to ship on the particular vessel in question, and when he refused to do so, that Mike Shelly knocked him down and jumped on him, and beat him with his fist in a most cruel manner; that he was stunned and his brain was addled by the blows; that both of his eyes were badly injured by the blows; that one eye was getting better, but the other was still closed and badly swollen.
The court inspected the witness' eyes in the presence of the jury, while on the witness stand, for the purpose of determining the question of serious damage.
The assault was committed on Monday, and the trial was held (675) on Thursday of the same week. On the trial one of the witness' eyes was firmly closed and badly swollen, so much so that it appeared to the court, on close inspection, to protrude fully one inch from his eye-brow, or its natural position. It was very black, with some red places upon it, and presented a very ugly and peculiar appearance. He testified that he had opened the lids of this eye, to wash it, by using his fingers with considerable force or effort, and that when he did so the sight or vision was very dim and had been injured. He did not say that the sight was permanently injured. The other eye was not so much injured — the lids and surroundings were still black and looked bruised, but the lids were open and the sight good.
The defendant, Mike Shelly, stated on the stand that he struck the State's witness, Friberg, only one blow with his fist, and knocked him down, and that he did so because Friberg insulted him and tried to butt him.
The other defendants, Delia Bryson and John Daneheart, testified that they tried to part them while fighting, but both denied that they aided or abetted the defendant Shelly in any way.
It was also proved that the State's witness, Friberg, gave the cry of murder repeatedly, in a loud voice, while the defendant Shelly was beating him, and that several persons who were outside of the house were attracted by the noise created, and that three men entered the kitchen, who were attracted by the noise.
The court was of the opinion that serious damage was done, according to the evidence in this case, and overruled the plea of "former conviction," and also the plea to the jurisdiction of the court, and the defendant excepted.
There was no deadly weapon used.
While addressing the jury the counsel for the defendants said to the jury that he had nothing to say, so far as the defendant, Mike Shelly, was concerned, and then went on to submit his argument in behalf of the defendants Delia Bryson and John Daneheart. (676)
While the solicitor was addressing the jury, he remarked that it was not worth while speaking about the defendant, Mike Shelly, whose guilt was admitted, and then made an argument to show that the other defendants were also guilty.
When the jury returned to the court room to render their verdict, the clerk asked, in the usual way, if they had agreed on a verdict, whereupon the foreman answered, "the jury find the defendants not guilty." The solicitor immediately requested the court to inquire of the jury as to Mike Shelly, and the court, seeing that the jury had made a mistake, asked them what was their verdict as to the defendant, Mike Shelly, and immediately and simultaneously three or four members of the jury answered that the jury did not understand that they had to render any verdict as to him.
The court then told the jury that all three of the defendants named in the bill of indictment were on trial, and that the jury must retire and render a verdict as to the defendant Mike Shelly. The jury retired, and in less than ten minutes returned and rendered a verdict of guilty as to Mike Shelly, and not guilty as to the other defendants.
The counsel for the defendants submitted a motion for a new trial, and also a motion to discharge the defendant Mike Shelly:
1. Because the court erred in overruling the plea of former conviction.
2. Because the court erred in assuming jurisdiction in this case, there being no serious damage proved.
3. Because the court refused the motion of defendants' counsel to discharge the defendant, Mike Shelly, upon the ground that the jury had returned their first verdict of "not guilty" as to all of the defendants.
(677) The court refused the motion for a new trial, and also the motion to discharge the defendant Mike Shelly.
There was judgment, and the defendant appealed.
Attorney-General for the State.
No counsel for defendant.
SMITH, C. J., dissenting.
( S. v. Huntley, 91 N.C. 617, and S. v. Earnest, post, 740.)
We cannot hesitate to concur with the court below in deciding that serious damage was done to the prosecuting witness by the ferocious and unprovoked beating inflicted upon him by the defendant, as charged in the indictment and proved on the trial. The injury was not simply painful and humiliating — it disfigured the face, seriously bruised the eyes — closed one of them entirely for days, and probably permanently impaired the sight. It seems to us that there can be no question that serious damage was done. The justice of the peace, therefore, had no jurisdiction of the offense, and any judgment he undertook to render in a criminal action before him on that account was a nullity.
The plea of autre fois convict was properly not sustained. S. v. Huntley, 91 N.C. 617.
The criminal court had jurisdiction of the simple assault and battery charged in the indictment, if more than six months elapsed next after the time when the offense was perpetrated, and before the beginning of the present action; and this is none the less so because the justice of the peace did not have jurisdiction. The jurisdiction of the criminal court was presumed, and the burden was on the defendant to prove, as matter of defense, that less than six months so elapsed, in order to defeat it. As no such defense was made, and no question in that respect was raised on the trial, it must be inferred that the court had jurisdiction of the offense, as charged. The presumption in favor of it was not rebutted. S. v. Earnest, post, 740, and cases there (678) cited.
It is true that the defendant might have been indicted — and it seems that regularly he ought to have been — for an assault and battery in which serious damage was done. The present indictment is not sufficient for that purpose, because it does not charge that serious damage was done, its nature and extent, but it charges the simple offense; and the court having jurisdiction it could, as it did do, give an appropriate judgment upon the verdict of guilty. One advantage of charging the offense as one in which serious damage was done is, that the jurisdiction cannot be ousted by showing that six months had not elapsed, as above indicated.
It may seem somewhat singular that the justice of the peace had not jurisdiction of the offense as a simple assault and battery, and the criminal court had. The reason and explanation of such seeming inconsistency is, that the criminal court has the larger jurisdiction — it had jurisdiction of the simple offense as indicated, and as well and exclusively of the offense accompanied and rendered more aggravated by serious damage.
The error assigned as to the rendition of the verdict of the jury cannot be sustained. Before the court received and entered it, at once it was suggested there was mistake and misapprehension of the jury, of which they became presently conscious upon explanation from the court; they returned for further consideration of their verdict, corrected the error, and in a few minutes rendered a verdict of guilty, without hesitation. It would savor of trifling to allow so small an irregularity to delay, perhaps defeat, justice, especially in a case in which plainly no injustice is done the party complaining.
The rights of the accused must be protected by every safeguard, but this does not imply that he is entitled to have substantial advantage — opportunity to defeat the ends of justice — arising from slight immaterial irregularities that work no injustice to him. S. v. (679) Bishop, 73 N.C. 44.
There is no error. Let this opinion be certified to the criminal court according to law.
Affirmed.