{
  "id": 8620390,
  "name": "STATE v. WILLIAM MALPASS",
  "name_abbreviation": "State v. Malpass",
  "decision_date": "1946-05-22",
  "docket_number": "",
  "first_page": "403",
  "last_page": "405",
  "citations": [
    {
      "type": "official",
      "cite": "226 N.C. 403"
    }
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  "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": "224 N. C., 347",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8601788
      ],
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    {
      "cite": "221 N. C., 562",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "16 A. L. R., 959",
      "category": "reporters:specialty",
      "reporter": "A.L.R.",
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T21:52:42.041183+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. WILLIAM MALPASS."
    ],
    "opinions": [
      {
        "text": "Schenck, J.\nThe first three exceptive assignments of error set out in the appellant\u2019s brief have their origin in his Honor\u2019s refusal to allow the defendant\u2019s motion to dismiss the action on the first count in the bill of indictment, namely, violation of G. S., 14-29, duly lodged when the State had produced its evidence and rested its case, and duly renewed after all the evidence in the case was concluded. G. S., 15-173.\nIt is contended by the defendant that when the statute speaks of disablement or disfigurement of a limb or member of the body as a maiming, a permanent injury is contemplated, such as at common law would constitute mayhem. \u201cTo wound\u201d is distinguished from \u201cto maim\u201d in that the latter implies a permanent injury to a member of the body or renders a person lame or defective in bodily vigor. Black\u2019s Law Dictionary (Second Edition), p. 746; 16 A. L. R., 959. In the case at bar the first count in the bill of indictment charges only the maiming of the privy members of the prosecuting witness. There is no evidence of any permanent injury to the testicles or private parts of Purvis, no evidence of any castration or of any injury that might cause impotency. The evidence offered by Purvis was to the effect that his injury was not permanent \u2014 the State\u2019s witness, the physician, Dr. Walton, testified that he recalled no injury to the testicles. With these contentions of the defendant, notwithstanding the variance of the authorities, we concur, and since there was no evidence of permanent injury to the privy parts of' the prosecuting witness, we are of the opinion that it was error of the court to submit to the jury the question of the guilt of the defendant under the statute, G. S., 14-29.\nWe are of the opinion, and so hold, that the court did err in refusing to allow the motion of the defendant to dismiss the action on the first count made when the State had rested its case and renewed when the case was concluded, and therefore it is ordered that the judgment in so far as it relates to the offense of the violation of G. S., 14-29, is reversed.\nIn so far as the second count in the bill of indictment, the charge being an assault wherein serious damage was inflicted, is concerned, there appear in the appellant\u2019s brief no exceptions taken in connection with the trial on the second count, such being the case, even if there should be such exceptions taken in the record, they are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N. C., 562.\nThe jury returned a verdict of \u201cGuilty as charged in the bill of indictment,\u201d whereupon the court adjudged \u201cthat the defendant be confined in the State Prison for a term of not less than 2 years nor more than 5 years to be worked under the supervision of the State Highway and Public Works Commission.\u201d There was no apportionment of the punishment adjudged between the conviction of the offense charged in the first count and the conviction of the offense charged in the second count. In view of the fact that that portion -of the punishment adjudged which might be attributable to the first count is rendered nugatory by the reversal of the action of the court in submitting such count to the jury, the question is posed, does the conviction alone on the second count support the judgment as rendered? We are constrained to answer in the negative. The offense charged in the second count, an assault wherein serious damage is inflicted is a misdemeanor and conviction thereof does not support a judgment of imprisonment in the State\u2019s Prison from two to five years. Therefore the ease is remanded for a proper judgment upon a conviction on the second count, a misdemeanor. S. v. Graham, 224 N. C., 347, 30 S. E. (2d), 151.\nError and remanded.",
        "type": "majority",
        "author": "Schenck, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.",
      "Nathan Cole and Lyon & Lyon for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. WILLIAM MALPASS.\n(Filed 22 May, 1946.)\n1. Mayhem \u00a7\u00a7 1, 2\u2014\nIn order to support a conviction of violation of G. S., 14-29, it is necessary that the injury be permanent, and upon evidence tending only to show a temporary injury to the privy parts of prosecuting witness the defendant\u2019s motion to nonsuit should be allowed. \u201cTo maim\u201d as distinguished from \u201cto wound\u201d imports permanent injury.\n2. Criminal Law \u00a7 79\u2014\nExceptions not brought forward in appellant\u2019s brief are deemed abandoned. Rule 28.\n3. Criminal Law \u00a7 83\u2014\nWhere defendant is sentenced to serve a term in the State\u2019s Prison upon a general verdict of guilty on an indictment containing two counts, one charging a felony and the other a misdemeanor, and on appeal it is determined that defendant\u2019s motion to nonsuit should have been allowed on the count charging a felony, the cause must be remanded for proper judgment upon the conviction of the misdemeanor, since the sentence is not supported by the conviction on that count.\nAppeal by defendant from Williams, J., at November Term, 1945, of Columbus.\nTbe defendant was tried, convicted and sentenced to imprisonment in tbe State\u2019s Prison upon a bill of indictment charging that be (1) \u201cdid unlawfully, willfully, and feloniously and on purpose, but without malice aforethought, maim or disfigure tbe privy members of S. L. Purvis, to wit, bis testicle or testicles, with intent to maim, disfigure, disable or render impotent tbe said S. L. Purvis, contrary to tbe form of tbe statute\u201d; and that be, defendant, on tbe day and year aforesaid, did (2) \u201cin and upon one S. L. Purvis unlawfully and willfully make an assault, and be, tbe said \"William Malpass then and there unlawfully did \u25a0 beat and wound and thereby seriously damage and injure S. L. Purvis, against tbe form of tbe statute . . .\u201d Tbe jury returned tbe verdict \u201cthat William Malpass is guilty as charged in tbe bill of indictment.\u201d\nMotion was duly made by tbe defendant for judgment as of nonsuit on the evidence, which was overruled by the court and defendant noted an exception. Motion was made and allowed that judgment be continued until the 'November Term, 1945. The case came on for hearing before \"Williams, J., at the November Term, of Columbus, and on 17 November, 1945, the defendant being present, the solicitor prayed judgment and judgment was pronounced \u201cthat the defendant be confined in the State Prison for a term of not less than 2 years nor more than 5 years to be worked under the supervision of the State Highway and Public Works Commission.\u201d From this judgment the defendant appealed, assigning errors.\nAttorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.\nNathan Cole and Lyon & Lyon for defendant, appellant."
  },
  "file_name": "0403-01",
  "first_page_order": 451,
  "last_page_order": 453
}