State v. Maness , 264 N.C. 358 ( 1965 )

141 S.E.2d 470 (1965) 264 N.C. 358

STATE
v.
Ronald Fred MANESS.

No. 579.

Supreme Court of North Carolina.

April 28, 1965.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen., James F. Bullock for the State.

H. F. Seawell, Jr., Carthage, for defendant appellant.

PER CURIAM.

Defendant assigns as error the court's refusal to allow his motion to nonsuit. C. R. Joyce testified: "As I approached Econo Service Station someone whistled loud and I pulled into the station between the gas tank and the station itself. I saw Maness come walking toward my car. He pulled off his coat and threw it on the ground and walked up to the car and I saw he was drinking some and he told me he was going to whip me and I told him the best thing he could do was to go home and stay out of trouble. He shoved me back against the car."

Defendant's denial of guilt, and his testimony painting a picture at variance with the State's evidence, did not entitle him to a judgment of nonsuit. The court properly submitted the question of guilt of an assault to the jury.

The assignment of error asserting failure to adequately define "assault" is not supported by an exception. This failure is fatal. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118.

The second count charging a violation of G.S. § 14-223 is, as the Attorney General admits, fatally defective because of the failure to allege essential facts. State v. Fenner, 263 N.C. 694, 140 S.E.2d 349.

The judgment imposing a prison sentence on the insufficient charge of resisting an officer is arrested. State v. Banks, 263 N.C. 784, 140 S.E.2d 318.

On the charge of assault. No Error.

On the charge of resisting an officer. Judgment Arrested.