{
  "id": 8608270,
  "name": "STATE v. WILBUR FLOYD",
  "name_abbreviation": "State v. Floyd",
  "decision_date": "1954-12-15",
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  "provenance": {
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. WILBUR FLOYD."
    ],
    "opinions": [
      {
        "text": "Parker, J.\nThe defendant assigns as error the failure of the Judge to comply with G.S. 1-180, in that he did not state any of the evidence introduced by the defendant, and did not explain the application of the law to the defendant\u2019s evidence.\nG.S. 1-180 requires the judge in his charge to the jury to declare, and explain the law arising on the evidence given in the case, but he is not required to state such evidence, except to the extent necessary to explain the application of the law thereto.\nStacy, C. J., speaking for the Court said in S. v. Ardrey, 232 N.C. 721, 62 S.E. 2d 53: \u201cIn interpreting this statute the authoritative decisions are to the effect that it \u2018confers upon litigants a substantial legal right and calls for instructions as to the law upon all substantial features of the ease\u2019; and further, that the requirements of the statute \u2018are not met by a general statement of legal principles which bear more or less directly, but not with absolute directness, upon the issues made by the evidence.\u2019 Williams v. Coach Co., 197 N.C. 12, 147 S.E. 435; S. v. Groves, 121 N.C. 563, 28 S.E. 262.\u201d\nThis rule applies in civil cases, as well as in criminal. Brannon v. Ellis, 240 N.C. 81, 81 S.E. 2d 196.\nThe judge stated in his charge: \u201cI have not been requested to do so, and will not do so, in the absence of request, either recapitulate the evidence in this ease, or state the contentions of the parties.\u201d There was a failure by the judge to state any evidence in the ease, either for the State or the defendant: and a failure to declare and explain the law arising on the defendant\u2019s evidence. This Court said in Brannon v. Ellis, supra: \u201cThe parties waived a recapitulation of the evidence by the court, and the jury was so informed. However, such waiver did not relieve the court of the duty to declare and explain the law arising on the evidence of the respective parties.\u201d A statement of the evidence solely in the form of contentions is not sufficient. Brannon v. Ellis, supra.\nThe defendant\u2019s defense was based on the theory that the shooting of his wife was accidental, or by misadventure, caused by the tussle over the pistol which she had pointed at him with her hand on the trigger; that all that he did was done in self-defense, and that he was not guilty. The defendant had a substantial legal right to have the judge to declare and explain the law arising on this evidence of his presented to the jury. S. v. Wingler, 238 N.C. 485, 78 S.E. 2d 303; S. v. Bright, 237 N.C. 475, 75 S.E. 2d 407; S. v. Williams, 235 N.C. 752, 71 S.E. 2d 138; S. v. Banks, 204 N.C. 233, 167 S.E. 851. The failure to so charge was prejudicial error. S. v. Brady, 236 N.C. 295, 72 S.E. 2d 675; S. v. Ardrey, supra.\nG-.S. 14-32 provides that \u201cany person who assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony . . .\u201d The judge instructed the jury that they could return a verdict of guilty as charged in the hill of indictment, that is guilty of an assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death. However, the indictment does not charge the infliction of a serious injury. Incidentally, an assault with intent to kill is a misdemeanor. S. v. Gregory, 223 N.C. 415, 27 S.E. 2d 140; S. v. Silvers, 230 N.C. 300, 52 S.E. 2d 877.\nThe Court further instructed the jury they could find the defendant guilty of a simple assault. \u201cAn assault on a female, committed by a man or boy over 18 years of age, is not a simple assault according to the usually accepted meaning of that charge. It is a misdemeanor punishable in the discretion of the Court. S. v. Jackson, 226 N.C. 66, 36 S.E. 2d 706.\u201d S. v. Church, 231 N.C. 39, 55 S.E. 2d 792.\nIt would seem from all the evidence before us in the Record that if an assault was made upon Mamie Floyd, a deadly weapon was used.\nFor the reasons given the defendant is awarded a\nNew trial.",
        "type": "majority",
        "author": "Parker, J."
      }
    ],
    "attorneys": [
      "Harry McMullan, Attorney General, and Claude L. Love, Assistant Attorney General, for the State.",
      "F. D. HacJcett and Robert Weinstein for Defendant, Appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. WILBUR FLOYD.\n(Filed 15 December, 1954.)\n1. Criminal Law \u00a7 53d\u2014\nEven when tbe parties waive a recapitulation of tbe evidence, it is neces- ' sary that tbe court state tbe evidence to the extent necessary to explain tbe application of tbe law thereto. G.S. 1-180.\n2. Assault \u00a7 14a\u2014\nIn a prosecution for assault, where defendant\u2019s evidence tends to show that tbe shooting was accidental or by misadventure caused by a tussel over the pistol which tbe prosecuting witness bad pointed at him, defendant has a substantial legal right to have tbe judge declare and explain tbe law arising on this evidence, and failure of tbe court to do so is prejudicial error.\n3. Assault \u00a7 8d\u2014\nAn assault with intent to kill, without averment of the infliction of serious injury, is a misdemeanor.\n4. Same\u2014\nAn assault on a female committed by a man or boy over eighteen years of age is not a simple assault according to the usually accepted meaning of that charge. It is a misdemeanor punishable in the discretion of the court.\nAppeal by defendant from Hubbard, Special Judge, May \u201cA\u201d Criminal Term 1954 of BobesoN.\nCriminal prosecution upon a bill of indictment charging tbe defendant with assaulting bis wife, Mamie Floyd, with a deadly weapon with intent to kill inflicting a wound to the body.\nThe defendant pleaded Not Guilty. The only evidence offered by the defendant was the testimony of his wife. Mamie Floyd gave testimony tending to show: She had been drinking. She was at John Bell\u2019s house. Her husband said \u201clet\u2019s go home,\u201d and as she didn\u2019t want to go, she took a pistol out of her pocketbook, and pointed it at her husband to scare him. She had her hand on the trigger. Her husband grabbed the pistol, and in the tussle the pistol went off, and hit her in the shoulder. Her husband did not shoot her: she shot herself.\nVerdict: guilty of simple assault. Judgment: 30 days imprisonment.\nDefendant excepted, and appealed, assigning error.\nHarry McMullan, Attorney General, and Claude L. Love, Assistant Attorney General, for the State.\nF. D. HacJcett and Robert Weinstein for Defendant, Appellant."
  },
  "file_name": "0298-01",
  "first_page_order": 336,
  "last_page_order": 339
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