{ "id": 2217692, "name": "Z. V. RAWLS v. E. S. LUPTON", "name_abbreviation": "Rawls v. Lupton", "decision_date": "1927-03-23", "docket_number": "", "first_page": "428", "last_page": "432", "citations": [ { "type": "official", "cite": "193 N.C. 428" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "186 N. C., 49", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652674 ], "opinion_index": 0, "case_paths": [ "/nc/186/0049-01" ] }, { "cite": "180 N. C., 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653743 ], "opinion_index": 0, "case_paths": [ "/nc/180/0406-01" ] }, { "cite": "178 N. C., 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272542 ], "opinion_index": 0, "case_paths": [ "/nc/178/0388-01" ] }, { "cite": "177 N. C., 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654378 ], "opinion_index": 0, "case_paths": [ "/nc/177/0313-01" ] }, { "cite": "168 N. C., 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657261 ], "opinion_index": 0, "case_paths": [ "/nc/168/0089-01" ] }, { "cite": "165 N. C., 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660495 ], "opinion_index": 0, "case_paths": [ "/nc/165/0582-01" ] }, { "cite": "157 N. C., 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659051 ], "opinion_index": 0, "case_paths": [ "/nc/157/0568-01" ] }, { "cite": "152 N. C., 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270312 ], "opinion_index": 0, "case_paths": [ "/nc/152/0203-01" ] }, { "cite": "145 N. C., 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253372 ], "opinion_index": 0, "case_paths": [ "/nc/145/0337-01" ] }, { "cite": "142 N. C., 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652374 ], "opinion_index": 0, "case_paths": [ "/nc/142/0496-01" ] }, { "cite": "135 N. C., 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658727 ], "opinion_index": 0, "case_paths": [ "/nc/135/0181-01" ] }, { "cite": "129 N. C., 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658840 ], "opinion_index": 0, "case_paths": [ "/nc/129/0063-01" ] }, { "cite": "124 N. C., 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657971 ], "opinion_index": 0, "case_paths": [ "/nc/124/0083-01" ] }, { "cite": "121 N. C., 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653639 ], "opinion_index": 0, "case_paths": [ "/nc/121/0586-01" ] }, { "cite": "104 N. C., 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651349 ], "opinion_index": 0, "case_paths": [ "/nc/104/0354-01" ] }, { "cite": "134 N. C., 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273617 ], "opinion_index": 0, "case_paths": [ "/nc/134/0552-01" ] }, { "cite": "191 N. C., 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628008 ], "opinion_index": 0, "case_paths": [ "/nc/191/0137-01" ] }, { "cite": "190 N. C., 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596052 ], "opinion_index": 0, "case_paths": [ "/nc/190/0108-01" ] }, { "cite": "189 N. C., 15", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653379 ], "opinion_index": 0, "case_paths": [ "/nc/189/0015-01" ] }, { "cite": "188 N. C., 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654404 ], "opinion_index": 0, "case_paths": [ "/nc/188/0551-01" ] }, { "cite": "187 N. C., 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653308 ], "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc/187/0078-01" ] }, { "cite": "186 N. C., 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653516 ], "opinion_index": 0, "case_paths": [ "/nc/186/0312-01" ] }, { "cite": "185 N. C., 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657860 ], "opinion_index": 0, "case_paths": [ "/nc/185/0735-01" ] }, { "cite": "182 N. C., 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657898 ], "opinion_index": 0, "case_paths": [ "/nc/182/0708-01" ] } ], "analysis": { "cardinality": 634, "char_count": 10404, "ocr_confidence": 0.474, "pagerank": { "raw": 1.2976585637831353e-06, "percentile": 0.9893455178274873 }, "sha256": "db488d2f0e0caca33d878130db0d5afe474dd98e56547a586d9799457b1fee1f", "simhash": "1:86af9cabeae180d8", "word_count": 1823 }, "last_updated": "2023-07-14T17:08:43.639996+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Z. V. RAWLS v. E. S. LUPTON." ], "opinions": [ { "text": "Clarkson, J.\nThis is an action for assault and battery, brought by plaintiff against defendant. The plaintiff alleges that the assault and battery was willful, wanton, and malicious, and in his prayer for judgment demands punitive as well as actual damages.\nThe issues submitted to the jury, and their answers thereto, are as follows:\n\u201c1. Did the defendant wrongfully and unlawfully assault and injure the plaintiff, as alleged in his complaint? Answer: \u2018Yes.\u2019\n\u201c2. Was said assault willful, wanton, and malicious, as alleged in the complaint? Answer: \u2018No.\u2019\n\u201c3. What damages, if any, is plaintiff entitled to recover from defendant? Answer: \u2018$600, less $140 doctor bill' \u2014 $460.\u2019 \u201d\nThe plaintiff testified as to the occurrence, in part: \u201cAfter he (speaking of defendant) asked me about the letter, he made the statement, similar to this, if not the exact words, he said, \u2018Don\u2019t you think you have bedeviled me enough in the last four years ?\u2019 I said, \u2018Sheriff, the courts have sustained every matter I have had the last four years, and I don\u2019t see why you have taken this attitude.\u2019 I said, \u2018But for the fact that I agreed to a partial compromise of the money you owe the county, you would probably be in the penitentiary today.\u2019 He then jumped toward me like an angry bull, giving me a severe blow, struck the base of my nose between the eye and nose. I don\u2019t know how long I was unconscious, but the next I remember was standing in the hallway of the register of deeds\u2019 office; I was knocked down from the blow.\u201d Plaintiff\u2019s nose was broken from the severity of the assault and battery.\nDefendant contended-that he struck him through sudden anger on account of sudden provocation.\nThere are numerous exceptions and assignments of error made by plaintiff as to the refusal of the court below to admit certain evidence. There is nothing in the record to indicate or disclose what the answers would have been to the question propounded the witnesses. We cannot assume that they would have been favorable to plaintiff. The burden is on the appellant to show error; therefore, the record must set forth and disclose the materiality and competency of the evidence. The record is silent. A long line of unbroken authorities, civil and criminal, support the position here taken. Snyder v. Ashboro, 182 N. C., 708; S. v. Jestes, 185 N. C., 735; Layton v. Godwin, 186 N. C., 312; Hosiery Co. v. Express Co., ibid., 556; Barbee v. Davis, 187 N. C., 78, 85; S. v. Ashburn, ibid., 717; Smith v. Myers, 188 N. C., 551; S. v. Collins, 189 N. C., 15; Newbern v. Hinton, 190 N. C., 108; Hooper v. Trust Co., ibid., 423; Pace v. McAden, 191 N. C., 137.\nC. S., 643, is as follows: \u201cThe appellant shall cause to be prepared a concise statement of the case, embodying the instructions of the judge as signed by him, if there be an exception thereto, and the request of the counsel of the parties for instructions if there be any exception on account of the granting or withholding thereof, and stating separately, in articles numbered, the errors alleged. A copy of this statement shall be served on the respondent within fifteen days from the entry of the appeal taken; within ten days after such service the respondent shall return the copy with his approval or specific amendments endorsed or attached; if the case be approved by the respondent, it shall be filed with the clerk as a part of the record; if not returned with objections within the time prescribed, it shall be deemed approved.\u201d (Italics ours.)\nIn Gwaltney v. Assurance Society, 132 N. C., p. 930 (rehearing denied, 134 N. C., 552), construing this statute, this Court said: \u201cEach exception to the charge is required by the statute (The Code, sec. 550, now C. S., 643), to be stated separately in articles \u2018numbered,\u2019 and no exception should contain more than one proposition, else it is not \u2018specific,\u2019 and must be disregarded.\u201d\nErrors must be specifically assigned. An \u201cunpointed, broadside\u201d exception to the \u201ccharge as given\u201d will not be considered. McKinnon v. Morrison, 104 N. C., 354. Exception to the charge of the court in general terms, not sufficiently specific to call the attention of the court to the particular point claimed to be erroneous, cannot be considered by an appellate court. S. v. Webster, 121 N. C., 586; Pierce v. R. R., 124 N. C., 83; Mitchell v. Baker, 129 N. C., 63; Sigman v. R. R., 135 N. C., 181; Davis v. Keen, 142 N. C., 496; Streator v. Streator, 145 N. C., 337; Jackson v. Williams, 152 N. C., 203; Lumber Co. v. Moffitt, 157 N. C., 568; Sigmon v. Shell, 165 N. C., 582; Barefoot v. Lee, 168 N. C., 89; Nance v. Tel. Co., 177 N. C., 313; Bank v. Pack, 178 N. C., 388; Lanier v. Pullman Co., 180 N. C., 406; Hale v. Rocky Mount Mills, 186 N. C., 49.\nUnder C. S., 643, supra, and the decisions of this Court, the appellant must make \u201cspecific\u201d exceptions to the charge of the court below, stating separately in articles numbered the errors alleged.\nEor example: Suppose the court below instructed or charged the jury as follows: (\u201cThe 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.\u201d) To the foregoing charge in brackets or quotation, as the case may be, the plaintiff or defendant, as. the case may be, excepted.\nException No. 1.\nBattery is (\u201cAny unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent.\u201d) To the foregoing charge in brackets or quotation, plaintiff or defendant, as the case may be, excepted.\nException No. 2.\n(\u201cThe actual offer to use force to the injury of another is assault; the use of it is battery; hence, the two terms are commonly combined in the term \u2018assault and battery.\u2019 \u201d) To the foregoing charge in brackets or quotation the plaintiff or defendant, as the case may be, excepted.\nException No. 3.\nOf course, it goes without saying that appellant shall also set out in the assignments of error any exceptions taken during the trial in apt time to the admission or exclusion of testimony, or to rulings of the court on other matters. Those exceptions relating to the exclusion or admission of testimony, when brought forward into the assignments of error, shall reiterate, verbatim, such testimony. Exceptions to the charge can, if desired, be lettered a, b, e, etc.\nAssignments oe Error\n1. The court erred in charging or instructing the jury as follows: \u201cThe 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,\u201d as shown by plaintiff or defendant\u2019s exception No. 1. (R. p......)\nIn the present case, the statute has not been complied with. We do not mean to say that litigants cannot, by consent, eliminate so much of the charge as they do not think necessary for a decision of the legal matters in dispute. Continuity o\u00a3 the charge is necessary with the \u201cspecific\u201d exceptions. Anything else is unfair to the trial judge \u2014 to have his charge cut up in piecemeal and disconnected. In the assignments of error, so much of the charge as is excepted to and numbered with reference to the page of the record, is necessary. We continue to point a way which it is hoped will be kindly considered and substantially followed. We have frequently long records to read and re-read, and unless the statute is followed, and seriatim exceptions to the charge are made and numbered, with assignments of erroi' numbered, and giving record page, it is tedious and burdensome to \u201cfish out\u201d of the charge the numerous assignments of error. \u201cIn this way the scope of our inquiry is narrowed to the identical points which the appellant thinks are material and essential, and the Court is not sent scurrying through the entire record to find the matters complained of.\u201d Byrd v. Southerland, 186 N. C., p. 385.\nThe rules of practice, both of the Supreme and Superior Courts, have been carefully reexamined and all modifications incorporated and are printed in 192 N. C., p. 837, with annotations.\nNotwithstanding that the statute has not been complied with yet, we have examined the charge, and, as a whole, we can find no reversible or prejudicial error.\nIn plaintiff\u2019s brief it is said: \u201cThis matter thus far has been a great miscarriage of justice.\u201d The facts were passed upon by the jury in the court below. We have no power here except to \u201creview upon appeal any decision of the courts below, upon any matter of law or legal inferenceConst, of N. C., part Art. IV, sec. 8.\nOn the record, we can find\nNo error..", "type": "majority", "author": "Clarkson, J." } ], "attorneys": [ "D. L. Ward, Gui\u00f3n & Gui\u00f3n, and L. I. Moore for plaintiff.", "No counsel for defendant." ], "corrections": "", "head_matter": "Z. V. RAWLS v. E. S. LUPTON.\n(Filed 23 March, 1927.)\n1. Appeal and Error \u2014 Presumptions \u2014 Burden of Proof \u2014 Evidence\u2014 Questions and Answers \u2014 Unanswered Questions.\nThe presumptions are in favor of the correctness of the rulings of law of the Superior Court, with the burden upon appellant to show error therein, and upon the refusal of the trial judge to admit in evidence answers to questions asked of the witness, it must be made to appear what the answers of the witness would have been so that the Supreme Court may pass upon its relevancy and materiality.\n3. Appeal and Error \u2014 Instructions\u2014Exceptions \u2014 Statutes \u2014 Buies of Court.\nExceptions to the charge of the court must specifically relate to the complete portions upon which the appellant bases his exceptions, with each separately numbered in relation to the distinct principle upon which exception is taken, and it must be made to appear in some appropriate and recognized way that the point is fully presented by the exception, or it will be ineffectual as being a broadside exception. O. S., 643.\n3. Ajipeal and Error \u2014 Questions of Law or Legal 'Inference \u2014 Constitutional Law.\nWhere the record discloses no error of law or legal inference made upon the trial, the Supreme Court on appeal cannot consider whether a miscarriage of justice has resulted in the case appealed. Const, of North Carolina, Art. IV, sec. 8.\nAppeal by plaintiff from Sinclair, J., and a jury, at the Fall Term, 1926, of Pamlico.\nNo error.\nD. L. Ward, Gui\u00f3n & Gui\u00f3n, and L. I. Moore for plaintiff.\nNo counsel for defendant." }, "file_name": "0428-01", "first_page_order": 506, "last_page_order": 510 }