{
  "id": 8557280,
  "name": "STATE OF NORTH CAROLINA v. JAMES C. THOMAS, SR.",
  "name_abbreviation": "State v. Thomas",
  "decision_date": "1976-06-18",
  "docket_number": "No. 7512SC803",
  "first_page": "757",
  "last_page": "759",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "225 S.E. 2d 553",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "opinion_index": 0
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    {
      "cite": "290 N.C. 286",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "203 S.E. 2d 6",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
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    {
      "cite": "285 N.C. 72",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8561734
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      "year": 1974,
      "opinion_index": 0,
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    {
      "cite": "204 S.E. 2d 817",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "pin_cites": [
        {
          "page": "829"
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      "opinion_index": 0
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    {
      "cite": "285 N.C. 256",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8563941
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      "year": 1974,
      "pin_cites": [
        {
          "page": "273"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/285/0256-01"
      ]
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    {
      "cite": "187 S.E. 2d 364",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "14 N.C. App. 136",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8547270
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      "year": 1972,
      "opinion_index": 0,
      "case_paths": [
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  "analysis": {
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    "char_count": 6400,
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  "last_updated": "2023-07-14T16:29:22.308082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES C. THOMAS, SR."
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant assigns error to the court\u2019s refusal to strike the words \u201cdeadly weapon\u201d from the bill of indictment. Defendant maintains his motion to delete \u201cdeadly weapon\u201d amounted to a motion to quash for duplicity, contending the indictment charged two offenses in one count, to wit: (1) assault with a deadly weapon, a violation of G.S. 14-33 (b) (1), and (2) assault with a firearm on a police officer while such officer was in the performance of his duties, a violation of G.S. 14-34.2. We find no error in the court\u2019s ruling in this regard. The indictment in essence charges that defendant did \u201cassault ... a deputy sheriff .. . with a deadly weapon, to wit: a shotgun while [he was] engaged in his official duties as ,a deputy sheriff.\u201d This clearly charges the defendant only with a violation of G.S. 14-34.2. See, State v. Norton, 14 N.C. App. 136, 187 S.E. 2d 364 (1972). G.S. 14-33 (b) expressly provides that it applies \u201c[u]nless [defendant\u2019s] conduct is covered under some other provision of law providing greater punishment.\u201d G.S. 14-34.2 does provide greater punishment.\nDefendant also assigns error to denial of his motion to quash the indictment for its failure to specify adequately the official duty being performed by Officer Conerly. Again, we detect no error, finding sufficient particularity in the language of the indictment which states that the officer was \u201cengaged in his official duties as a deputy sheriff, to wit: answering a call at 309 Richmond Drive, Fayetteville, North Carolina, concerning a domestic problem.\u201d\nDuring his jury argument, defense counsel attempted to read G.S. 14-34.2 to the jury. The court permitted him to read only the first portion of the statute, which specifies the elements of the offense, and refused to permit him to read to the jury the portion of the statute fixing the punishment. In this there was error. \u201cCounsel may, in his argument to the jury, in any case, read or state to the jury a statute or other rule of law relevant to such case, including the statutory -provision fixing the punishment for the offense charged.\u201d (Emphasis added.) State v. Britt, 285 N.C. 256, 273, 204 S.E. 2d 817, 829 (1974). However, \u201c[t]his does not mean that a defendant should be permitted to argue that because of the severity of the statutory punishment the jury ought to acquit, to question the wisdom or appropriateness of the punishment, or to state the punishment provisions incorrectly. State v. Britt, supra; State v. Dillard, 285 N.C. 72, 203 S.E. 2d 6 (1974). Nor should either the state or the defendant be allowed to speculate upon the outcome of possible appeals, paroles, executive commutations or pardons.\u201d State v. McMorris, 290 N.C. 286, 225 S.E. 2d 553 (filed 17 June 1976).\nFor the error in the court\u2019s refusing to permit defense counsel to read the punishment provision in the statute to the jury, defendant is entitled to a\nNew trial.\nChief Judge Brock and Judge Arnold concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Assistant Attorney General Roy A. Giles, Jr., for the State.",
      "Seavy A. Carroll for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES C. THOMAS, SR.\nNo. 7512SC803\n(Filed 18 June 1976)\n1. Assault and Battery \u00a7 11; Indictment and Warrant \u00a7 8\u2014 assault with deadly weapon on police officer \u2014 one crime only charged\nThe trial court did not err in refusing to strike the words \u201cdeadly weapon\u201d from the bill of indictment charging defendant with assaulting \u201c. . . a deputy sheriff . . . with a deadly weapon, to wit: a shotgun while [he was] engaged in his official duties as a deputy sheriff,\u201d since the indictment clearly charged defendant only with a violation of G.S. 14-34.2, assault with a firearm on a police officer while such officer was in the performance of his duties, and not in addition-with a violation of G.S. 14-33(b)(l), assault with a deadly weapon.\n2. Assault and Battery \u00a7 11\u2014 assault with firearm on police officer in performance of his duties \u2014 sufficiency of indictment\nIn a prosecution for assault with a firearm on a police officer while he was engaged in the performance of his duties, the indictment specified adequately the official duty being performed by the officer where it stated that he was answering a call at a given address concerning a domestic problem.\n3. Criminal Law \u00a7\u00a7 102, 138\u2014 punishment provision of statute \u2014 reading to jury proper\nDefendant is entitled to a new trial where the court permitted defense counsel to read to the jury only the first portion of G.S. 14-34.2, which specifies the elements of the offense charged, but refused to permit him to read to the jury the portion of the statute fixing the punishment.\nAppeal by defendant from Bailey, Judge. Judgment entered 19 June 1975 in Superior Court, Cumberland County. Heard in the Court of Appeals 23 January 1976.\nDefendant was indicted for assault with a firearm upon a law-enforcement officer while such officer was in the performance of his duties, a violation of G.S. 14-34.2.\nThe State presented the testimony of John F. Conerly, a deputy sheriff of Cumberland County, who testified that on 12 April 1975 he was called during the course of his duties to defendant\u2019s home on a domestic problem. He did not have a warrant. Upon arrival, defendant\u2019s wife invited him into the house. Defendant asked the officer if he had a warrant and, upon being informed that he did not, told the officer to leave the house. Conerly complied and explained to defendant\u2019s wife that if she wanted to talk to him she would have to accompany him outside. As the officer was opening the door to leave, he felt an object in his back. He turned around slowly and observed defendant pointing a shotgun at him. Defendant told the officer \u201cto get out of his house or he was going to kill [him].\u201d Conerly backed out of the house, reached his patrol car, and radioed for assistance. Defendant\u2019s wife went with the officer to the magistrate\u2019s office, where Conerly obtained a warrant against defendant.\nDefendant testified that he was cleaning his son\u2019s shotgun on the day in question but denied pointing the gun at the officer or threatening to kill him. Defendant\u2019s wife testified that her husband did not point a gun at the officer and stated that she did not see a gun in her husband\u2019s hand at any time while the officer was there.\nThe jury found defendant guilty, and from judgment imposing a prison sentence, defendant appealed.\nAttorney General Edmisten by Assistant Attorney General Roy A. Giles, Jr., for the State.\nSeavy A. Carroll for defendant appellant."
  },
  "file_name": "0757-01",
  "first_page_order": 789,
  "last_page_order": 791
}