#### STATE v. BATTLE.

(Filed April 15, 1902.)

1. PUNISHMENT — Assaults and, Batteries — Affrays.

■Where no deadly weapon is used and.no serious damage done, the punishment in assaults, batteries and affrays shall not exceed a fine of fifty dollars or imprisonment for thirty days.

2. INDICTMENTS — Assaults—Batteries—Affrays.

In indictments for assaults, batteries and affrays, where serious damage has been done, it is necessary to describe the serious damage done,' its character and extent.

INDICTMENT against Ed. S. Battle and A. M. Powell, heard by Judge W. 8. O’B. Robinson and a jury, at September Term, 1901, of the Superior Court of Wane County. Erom a verdict of guilty of both defendants and judgment thereon, the defendant Battle appealed.

Robert D. Gilmer, Attorney-General, for the State.

8. F. Mordecai, J. B. Batchelor, D. L. Russell, and W. N. Jones, for the' defendant.

Montgomery, J.

There is only one question involved in this appeal, and that presents no difficulty in its decision. If *656tbe bill of indictment be stripped of a balf dozen superfluous words, it will readily be seen upon tbe most casual inspection that tbe offense charged is tbat of a simple assault — a mutual fighting between tbe appellant Battle and tbe other defendant, Powell — occurring during1 tbe September Term, 1901, of Wake Superior Court, and within one mile of tbe courthouse- of tbat county. Tbe jury returned for their verdict tbat tbe defendants were guilty in tbe manner and form as charged in tbe bill of indictment, and tbe Court suspended judgment as to the defendant Powell, and sentenced tbe defendant Battle to- imprisonment and bard labor upon tbe public roads for sixty days.

Had the Court tbe authority to impose such a sentence — to impose a sentence for more than thirty days imprisonment or a fine of fifty dollars ? Tbat is tbe only question in this appeal, and tbe answer is, tbe Court did not have tbat power. In cases where no deadly weapon has- been used and no serious damage done, tbe punishment in assaults, assaults and batteries, and affrays, shall not exceed a fine of fifty dollars or imprisonment for thirty days. Tbe Code, See. 981; State v. Nash, 109 N. C., 824; State v. Johnson, 94 N. C., 863; State v. Albertson, 113 N. C., 633. Tbe Superior Court, in a case like this one, could not impose a sentence beyond the limit for a simple assault or affray where no- deadly weapon bad been used and no serious damage done when tried before a Justice of tbe Peace. State v. Albertson, supra. Tbe Superior Courts and Courts of Justices of tbe Peace have concurrent jurisdiction of such offenses as tbe one charged in tbe bill of indictment. Code; Sec. 892; State v. Bowers, 94 N. C., 910.

Tbe bill of indictment is as follows: “State of North Carolina, Wake County. In tbe Superior Court, September Term, 1901. Tbe jurors for tbe State, upon their oaths, present tbat Edward S. Battle and A. M. Powell, in Wake County,on tbe 25th day of September, 1901, did unlawfully and wil-*657fully mutually assault and beat each other in a public place, and inflict serious injury upon each other, during the September Term, 1901, of Wake Superior Court, and within one mile of the court-house of said county, and then and there did unlawfully and wilfully fight and make an affray, to the terror of the citizens there assembled and against the peace and dignity of the State.”

If that bill was intended to be one for an affray in which serious damage was done, and over which the Superior Court had exclusive original jurisdiction, with the power to punish in excess of a fine of fifty dollars or imprisonment for thirty days, the intention is disappointed. It has been over and ever decided by this Court that in indictments for assaults, assaults and batteries; and affrays, where serious damage has been done, it is necessary to describe the “serious damages” done, their character and extent, so that the Court can see from the face of the indictment the particular descriptive facts charged; that the offense contemplated by the statute is charged; and that an averment that a party to an affray, or a prosecutor injured in an assault, was seriously injured or sustained serious damages, is too general and indefinite. State v. Ernest, 98 N. C., 740; State v. Moore, 82 N. C., 659 ; State v. Russell, 91 N. C., 624; State v. Covington, 94 N. C., 913, 65 Am. Rep., 650; State v. Shelley, 98 N. C., 673; State v. Porter, 101 N. C., 713; State v. Phillips, 104 N. C., 786; State v. Stafford, 113 N. C., 635. In the light of these decisions, the words “inflict serious injury upon each other,” used in the bill of indictment, are meaningless, because they are vague and indefinite. The nature and extent of the injury should have been set forth, so that “the Court and not the pleader must determine that the facts must constitute the offense, and these must be charged.” State v. Ernest, supra.

But even if the bill had sufficiently charged an affray in which serious damage had been done, the evidence embraced *658in tbe case on appeal — tbe testimony of tbe witness Bridgers —does not contain one word concerning tbe nature and extent of tbe injuries sustained by Powell, or that be wasi injured in any way, with tbé exception, that be was knocked down by Battle.

We have decided tbis case upon tbe matter brought up' to' us in tbe appeal, and upon nothing else. If, in tbe whole affair, public justice has suffered by reason of a failure of fuller investigation, tbe responsibility is not upon us.

Tbe case is remanded to1 the Superior Court to tbe end that judgment may be pronounced on tbe verdict according to law.

Remanded.