State v. Price

144 S.E.2d 865 (1965)

265 N.C. 703

STATE of North Carolina v. Floyd Nelson PRICE.

No. 575.

Supreme Court of North Carolina.

November 24, 1965.

*866 T. W. Bruton, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., and William F. Briley, Trial Atty., Raleigh, for the State.

Knox Jenkins, Jr., Smithfield, for defendant appellant.

PER CURIAM:

The bill of indictment in this case indicates that the solicitor set out to charge defendant with the crime of felonious assault as defined in G.S. § 14-32, yet *867 he failed to incorporate in it the word feloniously. Therefore, as we have repeatedly held, the indictment does not charge a felony. State v. Lawrence, 264 N.C. 220, 141 S.E.2d 264; State v. Whaley, 262 N.C. 536, 138 S.E.2d 138. It does, however, specifically charge an assault wherein serious injury was inflicted. Although it would seem to come within the definition, State v. Cauley, 244 N.C. 701, 94 S.E.2d 915, it is not necessary to decide whether a burning paper bag, under the circumstances of its use here, constituted a deadly weapon. See also Commonwealth v. Farrell, 322 Mass. 606, 78 N.E.2d 697.

The jury having convicted defendant of a misdemeanor "as charged," and the court having sentenced defendant accordingly, no error appears upon the face of the record. The evidence was plenary to overcome defendant's motion for nonsuit, and his contention that Mavis O'Neal Cole was an incompetent witness because he had married her before the trial is without merit. G.S. § 8-57. Defendant's other assignments of error do not require discussion. They point out no error in the court's instructions to the jury. State v. Wilson, 263 N.C. 533, 139 S.E.2d 736. We have, however, carefully examined the entire charge, and we find no reasonable cause to believe that the jury was misled by it. Nothing in the transcript shows error prejudicial to the defendanton the contrary!

We are constrained to say that the record in this case, as stipulated and agreed to by the solicitor and the attorney for defendant, and certified by the clerk, did not contain a true copy of the bill of indictment, nor did it show that the included bill had ever been returned by the grand jury. In this instance, we have secured from the Clerk of the Superior Court a properly authenticated and certified copy of the bill which shows that it was duly returned in the words and form appearing in the statement of facts. Obviously, officers of the General Court of Justice should not impose such a burden upon the appellate division, and it is one which we will not ordinarily assume. We further point out that the rules of the Supreme Court of North Caroline are no less applicable to indigent defendants and their court-appointed counsel than they are to all others.

No error.