State v. Newton

110 S.E.2d 810 (1959) 251 N.C. 151

STATE
v.
Johnnie E. NEWTON.

No. 372.

Supreme Court of North Carolina.

November 4, 1959.

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

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

BOBBITT, Justice.

While the record shows four assignments of error, only two are discussed in defendant's brief. Assignments of error, under our Rules and decisions, are deemed abandoned when defendant's brief states no reason or argument and cites no authority in support thereof. State v. Perry, 250 N.C. 119, 132, 108 S.E. 2d 447.

Defendant assigns as error: "That the trial Court erred in that in his Charge to the Jury, he failed to declare and explain the law arising on the evidence in the case and failed to apply the law to the evidence." This assignment, and the exception on which it is based, is broadside and ineffectual. State v. Corl, 250 N.C. 262, 265, 108 S.E.2d 613. It contains no suggestion as to what instruction is deemed objectionable or as to what instruction or instructions defendant contends should have been (but were not) given.

Defendant's remaining assignment of error is directed to the italicized portion of the following excerpt from the court's instructions to the jury, viz.: "So, Members of the Jury, as to Case Number 3490, 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 the defendant Johnnie E. Newton, did on the 22nd day of May, 1959, point a rifle in the direction of the prosecuting witness, Clyde E. DeBow and shoot the rifle in the direction of the prosecuting witness, Clyde E. DeBow, and that he then and there shot said rifle at said prosecuting witness with the intent to do him bodily harm, then the defendant Johnnie E. Newton would be guilty of an assault with a deadly weapon as charged in the Bill of Indictment and if you so find and beyond a reasonable doubt, it will be your duty to return a verdict of guilty as charged in case Number 3490 in the bill of indictment."

The evidence is positive and precise that, when the Guardsmen returned, defendant pointed his loaded rifle directly at them. G.S. § 14-34 provides: "If any person shall point any gun or pistol at any person, either in fun or otherwise, whether such gun or pistol be loaded or not loaded, he shall be guilty of an assault, and upon conviction of the same shall be fined, imprisoned, or both, at the discretion of the court." True, the quoted instruction shows the case was submitted in relation to the shot fired when the jeep was proceeding north on Roberson Street. Even so, the circumstances as to defendant's conduct when the Guardsmen returned are relevant as to defendant's attitude and intent with reference to the prior incident.

The ground upon which defendant challenges the italicized portion of the quoted instruction is that the court used the expression, "in the direction of," sometimes used by DeBow, when DeBow also used the expression, "in the general direction of," asserted to be a broader expression. As to this point, it would seem that the court, by requiring as a prerequisite to conviction that the jury find that defendant shot "in the direction of" the prosecuting witness, adopted the view more favorable to defendant.

When considered in the light most favorable to the State, we think the testimony that defendant pointed and fired his rifle "in the direction of" and "in the general direction of" the prosecuting witness is sufficient, taking all circumstances into consideration, to support the finding that defendant pointed and fired his rifle toward the jeep and its occupants or toward the area in which the jeep was proceeding.

It is noted that the jeep was approximately 50 feet from defendant when defendant pointed and fired his rifle. It is further noted that defendant pointed and fired his rifle in such manner that DeBow, who observed defendant's conduct, was placed in apprehension of the safety of himself and of Deatherage; and that, by reason of defendant's conduct, these Guardsmen left the scene and did not return until (1) they had alerted all patrol cars in the area to come to their aid, and (2) they had loaded their pistols for possible use in their own protection. It is further noted that when they did return they found defendant with his loaded rifle raised and pointed directly at them.

Defendant's guilt does not depend upon whether, before firing his rifle, he took precise aim at the jeep or any occupant thereof. "It is an assault, without regard to the aggressor's intention, to fire a gun at another or in the direction in which he is standing." Wharton's Criminal Law and Procedure, Vol. 1, § 332. "The law will not tolerate such a reckless disregard for human life." 4 Am.Jur., Assault and Battery § 6. In State v. Baker, 20 R.I. 275, 38 A. 653, 78 Am.St.Rep. 863, this instruction was approved: "Firing a pistol in the direction of another, with the intention of frightening him, or with the intention of wounding him, are equally assaults." In Edwards v. State, 4 Ga.App. 849, 62 S.E. 565, the Court of Appeals of Georgia approved this instruction: "* * if you find the defendant, without justification, shot a pistol in the direction of the witness, within carrying distance of the pistol, not intending to hit him, but intending to scare him, he would be guilty of an assault." If any portion of the quoted instruction is incorrect, it would seem to be the portion, to which defendant did not except, which imposed upon the State the burden of establishing defendant's intent to do bodily harm to the prosecuting witness.

"The principle is well established that not only is a person who offers or attempts by violence to injure the person of another guilty of an assault, but no one by the show of violence has the right to put another in fear, and thereby force him to leave a place where he has the right to be. State v. Hampton, 63 N.C. 13; State v. Church, 63 N.C. 15; State v. Rawles, 65 N.C. 334; State v. Shipman, 81 N.C. 513, 518; State v. Martin, 85 N.C. 508, 39 Am. Rep. 711; State v. Jeffreys, 117 N.C. 743, 23 S.E. 175." State v. Daniel, 136 N.C. 571, 575, 48 S.E. 544, 545. As succinctly stated by Ruffin, J., in State v. Marsteller, 84 N.C. 726: "No man has a right by a show of force to put another and an unoffending person in an immediate fear of bodily harm."

Defendant has failed to show prejudicial error.

No error.

HIGGINS, J., not sitting.