#### STATE v. BAXTER SHEMWELL.

(Filed 17 November, 1920.)

,1. Criminal Law — Indictment—Solicitor’s Signature — Motions to Quash..

It is not necessary that a true bill found by the grand jury should have been signed by the solicitor, and a motion to quash it on that account will be denied.

.2. Criminal Law — Instructions—Assault With Intent to Kill — Self-defense.

Where, on the trial of an assault with intent to hill, the defendant has not introduced any evidence, and there were only two witnesses for the State whose evidence was uncomplicated, tending to show that the defendant had entered the law office of the prosecuting witnesses and on account of his behavior they had , ordered him out, without threats or offer of Violence, whereupon he said no one could make him leave, drew two pistols, aiming at each of the prosecutors, one of them throwing a paper weight, which hit the defendant on the head, and he fired after the prosecutors had-, hold of him trying to disarm him. Held, a charge to the jury, placing on the State the burden of showing defendant’s guilt beyond a reasonable doubt, and instructing them to find a verdict of guilty of an assault with a deadly weapon should they find the facts to be as testified, is not objectionable as directing a verdict, there being no element of self-defense.

:8. Instructions — Explaining Evidence — Appeal and Error.

Where the evidence is plain and uncomplicated, upon a trial for an as- ’ sault with a deadly weapon with intent to kill, a charge of the court which is otherwise without error, is not objectionable solely because the judge did not explain the evidence to the jury.

■4. Instructions — Recapitulating Evidence — Special Requests — Appeal and Error.

The failure of the judge to recapitulate the evidence in his charge to the jury, without a special request made in apt time to do so, is not properly assignable for error on appeal.

■5. Criminal Law — Indictments—Less Offense — Assault With Intent to Kill —Deadly Weapons.

Upon the charge in an indictment of an assault with a deadly weapon, with intent to kill, a verdict of the less offense of an assault with a deadly weapon, is authorized by our statute, C. S., 4640.

6. Judgments— Motions in Arrest— Concurrent Jurisdiction— Plea in Abatement.

A motion in arrest of judgment can be made only for a defect appearing upon the face of the record, and objection that a court of concurrent jurisdiction has the case before it is only to be taken upon plea in abatement.

■7. Same — Recorder’s Court — Committing Magistrate.

Where a recorder’s court and the Superior Courts have concurrent jurisdiction of a criminal offense and the judge of the former court acts within his powers of committing magistrate, and binds the prisoner over to the Superior Court, objection that the recorder’s court had thereby taken jurisdiction of the offense is untenable, and neither will a motion to quash the indictment, nor a plea in abatement be sustained.

*7198. Appeal and Error— Record — Stenographer’s Notes — Instructions — Constitutional Law.

A certificate by a stenographer of his notes taken on the trial of a ease, set out in the record, on appeal, is no part thereof, and its variance with the judge’s charge, set out in the ease settled on appeal, cannot affect it, for the judge, alone, under the provisions of our Constitution, can settle the case.

Appeal by defendant from Bdy, J., at August Term, 1920, of Davidson.

Tbe defendant was indicted on two counts, one for an assault witb a deadly weapon upon Wade IT. Phillips with intent to kill, and the other for an assault upon John C. Bower with a deadly weapon with intent to kill. Verdict of guilty, and judgment. Appeal by defendant.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

James H. Pou, J. B. McCrary, Em.ery E. Eager, and ~W. A. Self for defendant.

Clark, C. J.

As one of the prosecuting witnesses, J. C. Bower was the solicitor for the district, the presiding judge, February Term, 1920, appointed Z. I. Walser pro tern, to represent the State. He failed to sign the bill, but it was acted upon by the grand jury, who returned a true bill without such signature. The defendant excepted to the court’s refusal to quash the bill for such omission, and again excepted to the judge permitting Walser to sign the bill at August term, nunc pro tunc.

In S. v. Mace, 86 N. C, 670, Ruffin, J., said: “The signature of the prosecuting officer, while usually attached to the indictment, forms no part of it, and is in no manner essential to its validity. The indictment is not his work, but the act of the grand jury, declared in open court, and need not be signed by any one; and if it be, it is a mere surplusage and cannot vitiate it. S. v. Vincent, 4 N. C., 105; S. v. Cox, 28 N. C., 440.” Indeed, even an endorsement by the foreman of the grand jury is not essential to its validity. S. v. Sultan, 142 N. C., 572, 573; S. v. Long, 143 N. C., 676.

The court charged the jury: “Gentlemen of the jury, the law presumes the defendant to be innocent. The burden of proof is on the State to convict him beyond a reasonable doubt. The question to be passed upon by you is the credibility of the witnesses. If you believe the witnesses introduced by the State have sworn the truth beyond a reasonable doubt; have no doubt as to the truth of what they have testified; then the court instructs you to return a verdict of guilty of an assault with a deadly weapon.” The defendant excepted because the *720court failed to explain to tbe jury tbe evidence and tbe law applicable thereto, as required by statute, and also because tbe court stated to tbe defendant’s counsel that there was no evidence of self-defense. ¥e think tbe charge was a correct statement of tbe law, and sufficient upon tbe facts of this case. If tbe defendant desired a fuller charge be should have asked for it. There were only two witnesses, and tbe questions presented to tbe jury were not at all complicated. There was no evidence which would justify a claim of self-defense on the part of the defendant, and in the absence of a special request to tbe judge to recapitulate tbe evidence, bis failure to do so is not assignable as error. In S. v. Ussery, 118 N. C., 1180, it is said: “If the prisoner desires the entire testimony, or any specific part thereof, repeated to the jury, be should make the request in apt time and before verdict. If no such instruction is asked, the failure of tbe court to repeat will not be a ground for a new trial.” To the same purport, S. v. Kinsauls, 126 N. C., 1095, and other cases.

We also think the judge was correct in ruling that the evidence presented no element of self-defense. The State’s evidence was that the defendant, Baxter Shemwell, went to tbe law office of Bower & Phillips in an angry mood, armed with two pistols. Both of these gentlemen endeavored to get him to- leave without having any difficulty. When he was asked to leave he drew both pistols, pointing one at Major Phillij)s and one at Bower. When this was done, Bower picked up a paper fastener and threw it at the defendant, which struck him on the head, disconcerting him somewhat, whereupon Messrs. Phillips and Bower endeavored to disarm him, and the defendant fired his pistol.

The only evidence upon which the defendant claims that there was some element of self-defense is to be found in the cross-examination of Major Wade II. Phillips: “The paper fastener was on the desk by Mr. Bower. I cannot say that I did see when he first put his hands on it. I am sure that Mr. Bower did not throw until the defendant had drawn his pistol. He threw it after the pistol was out and before it went off. The pistol did not go off until we both had Mr. Shemwell, trying to disarm him. When Mr. Bower threw the paper fastener it hit the defendant' glancing his left side, may have burst his hat (the hat was shown with break entirely through brim on left side, near front of bow on hat band). Defendant’s head was bleeding.”

Also, in the cross-examination Bower testified: “I hit him before he fired. He had the pistol presented, and was looking at me before I threw the clamp at him.” And he further said: “Mr. Shemwell did not move toward the door until Mr. Phillips got up and asked him to leave. He then jumped back about two steps toward the door, and pulled out his pistols, and said: ‘No man can run me out of this office.’ ”

*721Tbe evidence of tbe two witnesses for tbe State is clear and unambiguous, and shows an assault by tbe defendant upon tbe two prosecuting witnesses in tbeir own office witb two pistols, one pointed at eacb of tbem, because tbey requested bim to leave. Tbe defendant did not go upon tbe stand nor put on any evidence. Tbe evidence for tbe prosecution is tbat tbe prosecutors requested bim to leave, and not until be bad drawn and pointed bis pistols at tbem did Bower throw, or offer to throw, tbe clamp at tbe defendant, and if tbey bad not been a little quicker than tbe defendant after be drew bis pistols, one or both of tbem doubtless would have been bis victim. Tbey resorted to no force in tbe attempt to put bim out until after be bad drawn and pointed bis pistols at tbem. We fully concur witb tbe judge tbat there was in tbe evidence no element of self-defense on tbe part of. tbe defendant.

Tbe court did not direct a verdict against tbe defendant, but told tbe jury, as a matter of law, tbat if tbey believed tbe evidence for tbe State, to find tbe verdict of guilty, charging tbem tbat “tbe law presumes tbe defendant to be innocent. Tbe burden of proof is on tbe State to convict bim beyond a reasonable doubt. ... If you believe the witnesses introduced by tbe State have sworn tbe truth beyond a reasonable doubt, and have no doubt as to tbe truth as to what tbey testified, then return a verdict guilty of an assault witb a deadly weapon.” This was strictly in accordance witb S. v. Riley, 113 N. C., 648, and authorities there cited, and tbe citations to tbat case in Anno. Ed.

Tbe charge was for an assault witb a deadly weapon witb intent to kill. Tbe verdict was for tbe lesser offense of an assault witb a deadly weapon.* This is authorized by tbe act of 1891, now C. S., 4640; S. v. Matthews, 142 N. C., 621, and cases there cited.

After verdict, tbe defendant moved in arrest of judgment, alleging tbat tbe recorder’s court bad taken jurisdiction of this case, and tbat it was erroneous to try tbe same in tbe Superior Court.

A motion in arrest of judgment can be made only for a defect upon tbe face of tbe record, and none appears in this case. Tbe matters urged could have been tbe basis only for a plea in abatement. But passing by tbat defect, tbe plea would not have availed if it bad been made. Ob. 276, Public-Local Laws 1913, establishing a recorder’s court at Lexington, gave it original, exclusive jurisdiction of criminal offenses committed in tbe township of Lexington below tbe grade of felony. But cb. 299, Laws 1919, provides: “Tbat in all cases whereby in any statute original jurisdiction of criminal actions has been taken from tbe Superior Courts and vested in courts of inferior jurisdiction, such exclusive jurisdiction is hereby divested, and jurisdiction of such actions sbáll be concurrent and exercised by tbe court first taking cognizance thereof.”

*722Tbe recorder issued tbe warrant against tbe defendant, and on its return did not bind tbe defendant over to bis own court, but as a committing magistrate bound him over to tbe Superior Court, as be was fully empowered to doj and made tbis entry, “Tbe defendant waives examination, and is beld for Superior Court. Appearance bond, $5,000, to cover tbis case and warrant No. 2,894. Tbis 21 January, 1920.”

Tbe recorder did not take cognizance of tbe action for bis court witbin tbe meaning of tbe act of 1919, but clearly refused to do so, and acting solely witbin bis powers as a committing magistrate, bound tbe defendant over to tbe Superior Court. Tbe defendant made no objection at that time, nor at tbe trial in tbe Superior Court, and by waiving examination it would seem tbat be was consenting to tbe course adopted, but tbis is not material.

Tbe Superior Court bad concurrent jurisdiction of tbis offense, and tbe defendant was bound over to tbat court by a committing -magistrate witb full authority to bind over to either court, and who exercised bis election to bind over to tbe bigber court. Doubtless tbis was done in tbe public interest to avoid tbe delay and expense of two trials in a case of tbis importance.

Tbe defendant objects tbat tbe instruction to tbe jury, as set out by tbe judge, varies from tbe stenographer’s notes thereof. Tbis appears only in tbe defendant’s brief on a certificate by tbe stenographer, which is not a part of tbe record and cannot be considered as contradicting tbe case as settled by tbe judge. In Cressler v. Asheville, 138 N. C., 485, tbe Court said: “Tbe stenographic notes will be of great weight with tbe judge, but are not conclusive if be has reason to believe there was error or mistake. Tbe stenographer cannot take tbe plabe of tbe judge, who alone is authorized and empowered by tbe Constitution to try the cause, and who alone (if counsel disagree) can settle for tbis Court what occurred during tbe trial.” In tbis case tbe alleged variation, if correct, would be immaterial.

After full and careful consideration of every exception, we find

No error.