#### STATE vs. WILLIAM L. WALLACE.

December 1842.

Where the jury in a special verdict do not say that they find in one way or the other, according as the opinion of the court may be upon the law, the ver-diet is

Where a special verdict is imperfect or bad, so that no judgment can be given thereon, the proper course is to direct a venire de novo.

Appeal from the Superior Court of Law of Moore county, at Fall Term, 1842, his Honor Judge Dick presiding.

The defendant was indicted for an assault and battery on Robert Dean, and pleaded not guilty. On the trial of this issue, the jury found the following special verdict. The jury find, that while the prosecutor was sitting,in a chair, the defendant raised his gun in a striking position, being within striking distance of the prosecutor, and declared, that if he repeated certain words just uttered, he would strike him, which words were not repeated by the prosecutor, and the jury submit to the court whether this is in law an assault.

The court, being of opinion that it was not in law an assault, rendered judgment for the defendant, from which, the Solicitor for the State appealed to the Supreme Court.

Attorney General for the State.

D. Reid for the defendant.

Gaston, J.

The special verdict in this case is so imperfect, that in law no judgment can be rendered thereon. The jury submit to the court, whether the defendant be guilty of *196an assault, but they do not find the defendant guilty, if in the opinion of .the court he is guilty ; and not guilty, if in the opinion of the .court he is not guilty. The finding one way or umst be a finding of the jury, or the verdict is bad. When a special verdict is imperfect or bad, the proper course is to direct a venire de novo. Cro. Jac. 113. 2 L. Ray. 1521, 1522.

Should it be thought proper to bring the case before us after another trial, .we desire that the circumstances be stated more fully than they are set forth in this verdict. The words used, which the defendant forbade to be repeated, and the intent with which he raised his gun, and whether as wielded by him it would probably have occasioned death or great bodily harm had it descended on the prosecutor, are all matters proper to be noticed,

We have had occasion j.n the case .of the State v Morgan, (supra, p. 186) to give our views of the law on questions supposed .to be involved in this case, a.nd therefore our inability to render judgment in this case will probably not cause any serious .disappointment to those interested therein.

This opinion must be certified to the Superior Court of Moore, with instructions to set aside the verdict, and issue a venire de novo.

Per Curiam. Ordered accordingly.