{ "id": 8623437, "name": "STATE v. JOHNNIE E. NEWTON", "name_abbreviation": "State v. Newton", "decision_date": "1959-11-04", "docket_number": "", "first_page": "151", "last_page": "156", "citations": [ { "type": "official", "cite": "251 N.C. 151" } ], "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": "84 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698688 ], "opinion_index": 0, "case_paths": [ "/nc/84/0726-01" ] }, { "cite": "48 S.E. 544", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "136 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661297 ], "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc/136/0571-01" ] }, { "cite": "117 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653894 ], "opinion_index": 0, "case_paths": [ "/nc/117/0743-01" ] }, { "cite": "39 Am. Rep. 711", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "85 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278619 ], "opinion_index": 0, "case_paths": [ "/nc/85/0508-01" ] }, { "cite": "81 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694385 ], "opinion_index": 0, "case_paths": [ "/nc/81/0513-01" ] }, { "cite": "65 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955352 ], "opinion_index": 0, "case_paths": [ "/nc/65/0334-01" ] }, { "cite": "63 N.C. 15", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276165 ], "opinion_index": 0, "case_paths": [ "/nc/63/0015-01" ] }, { "cite": "63 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276152 ], "opinion_index": 0, "case_paths": [ "/nc/63/0013-01" ] }, { "cite": "62 S.E. 565", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "78 Am. St. Rep. 863", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "38 A. 653", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "20 R.I. 275", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 4997364 ], "opinion_index": 0, "case_paths": [ "/ri/20/0275-01" ] }, { "cite": "108 S.E. 2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622289 ], "pin_cites": [ { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0262-01" ] }, { "cite": "108 S.E. 2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620801 ], "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0119-01" ] } ], "analysis": { "cardinality": 636, "char_count": 13239, "ocr_confidence": 0.459, "pagerank": { "raw": 6.767143709901516e-08, "percentile": 0.4093294628374087 }, "sha256": "c742a60e6c34c6982539e720b3c3466d80c099966a5e60d0a9fc09a8b69826ca", "simhash": "1:ce89ac8a13c8eaa6", "word_count": 2276 }, "last_updated": "2023-07-14T17:26:21.126874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Higgins, J., not sitting." ], "parties": [ "STATE v. JOHNNIE E. NEWTON." ], "opinions": [ { "text": "Bobbitt, J.\nWhile the record shows four assignments of error, only two are discussed in defendant\u2019s brief. Assignments of error, under our Rules land decisions, are deemed abandoned when defendant\u2019s brief states no reason or argument and cites no authority in support thereof. S. v. Perry, 250 N.C. 119, 132, 108 S.E. 2d 447.\nDefendant assigns as error: \u201cThat the trial Court erred in that in his Charge to the Jury, he failed to declare and explain the law arising on the evidence in the ease and failed to apply the law to the evidence.\u201d This assignment, and the exception on which it is basedi, is broadside and ineffectual. S. v. Corl, 250 N.C. 262, 265, 108 S.E. 2d 613. It contains no suggestion as to what instruction is deemed objectionable or as to what instruction or instructions defendant contends should have been (but were not) given.\nDefendant\u2019s remaining assignment of error is directed to the italicized portion of the following excerpt from the court\u2019s instructions to the jury, vis.: \u201cSo, Members of the Jury, as to Case Number 3490, I 'instruct you that if you find from the evidence and beyond a reasonable doubt, the burden being on the State to so satisfy you, that the defendant Johnnie E. Newton, did on the BBnd day of May, 1959, \u25a0point a rifle in the direction of the prosecuting witness, Clyde E. DeBow and shoot the rifle in the direction of the prosecuting witness, Clyde E. DeBow, and that he then 'and there shot said rifle at said prosecuting witness with the intent to do him bodily harm, then the defendant Johnnie E. Newton would be guilty of an assault with a deadly weapon as charged in the Bill of Indictment and if you so find and beyond a reasonable doubt, it will be your duty to return a verdict of guilty as charged in case Number 3490 in the bill of indictment.\u201d\nThe evidence is positive and precise that, when the Guardsmen returned, defendant pointed his loaded rifle directly at them. G.S. 14-34 provides: \u201cIf any person shall point any gun. or pistol at any person, either in fun or otherwise, whether such gun or pistol be loaded or not loaded, he shall be guilty of an assault, and upon conviction of the same shall be fined, imprisoned, or both, at the discretion of the court.\u201d True, the quoted instruction shows the case was submitted in relation to the shot fired when the jeep was proceeding north on Roberson Street. Even so, the circumstances as to defendant\u2019s conduct when the Guardsmen returned are relevant as to defendant\u2019s attitude and intent with references to the prior incident.\nThe ground upon which defendant challenges the italicized portion of the quoted instruction is that the court used the expression, \u201cin the direction of,\u201d sometimes used by DeBow, when DeBow also used the expression, \u201cin the general direction of,\u201d asseited to be a broader expression. As to this point, it would seem that the court, by requiring as a prerequisite to conviction that the jury find that defendant shot \u201cin the direction of\u201d the prosecuting witness, adopted the view more favorable to defendant.\nWhen considered in the light most favorable to the State, we think the testimony that defendant pointed and fired his rifle \u201cin the direction of\u201d and \u201cin the general direction of\u201d the prosecuting witness is sufficient, taking all circumstances into consideration, to support the finding that defendant pointed and fired his rifle .toward the jeep and its occupants or toward the area in which the jeep was proceeding.\nIt is noted that the jeep was approximately 50 feet from defendant when defendant pointed and fired his rifle. It is further noted that defendant pointed and* fired his rifle in such manner that DeBow, who observed defendant\u2019s conduct, was placed in apprehension of the safety of himself and of Deatherage; and that, by i\u2019eason of defendant\u2019s conduct, these Guardsmen left the scene and did not return until (1) they had alerted all patrol cars in the area to come to their aid, 'amd (2) they had loaded their pistols for possible use in their own protection. It is further noted that when they did return they found defendant with his loaded rifle raised and pointed directly at them.\nDefendant\u2019s guilt does not depend upon whether, before firing his rifle, he took precise aim at the jeep or .any occupant thereof. \u201cIt is an assault, without regard to the aggressor\u2019s intention, to fire a gun at another or in the direction in which he is standing.\u201d Wharton\u2019s Criminal Law and Procedure, Vol. 1, \u00a7 332. \u201cThe law will not tolerate such a reckless disregard for human life.\u201d 4 Am. Jur., Assault and Battery \u00a7 6. In S. v. Baker, 20 R.I. 275, 38 A. 653, 78 Am. St. Rep. 863, this instruction was approved: \u201cFiring a pistol in the direction of another with the intention of frightening him, or with the intention of wounding him, are equally assaults.\u201d In Edwards v. State, 62 S.E. 565, the Court of Appeals of Georgia approved this instruction: \u201c. . . If you find the defendant, without justification, shot a pistol in the direction of the witness, within carrying distance of the pistol, not intending to hit him, but intending to scare him, he would be guilty of an assault.\u201d If any portion of the quoted instruction is incorrect, it would seem to be the portion, to which defendant did not except, which imposed upon the State the burden of establishing defendant\u2019s intent to do bodily harm to the prosecuting witness.\n\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. S. v. Hampton, 63 N.C. 13; S. v. Church, 63 N.C. 15; S. v. Rawles, 65 N.C. 334; S. v. Shipman, 81 N.C. 513; S. v. Martin, 85 N.C. 508, 39 Am. Rep. 711; S. v. Jeffreys, 117 N.C. 743.\u201d S. v. Daniel, 136 N.C. 571, 575, 48 S.E. 544. As succinctly stated by Ruffin, J. in S. v. Marsteller, 84 N.C. 726; \u201cNo man has a right by a show of force to put another and an unoffending person in an immediate fear of bodily harm.\u201d\nDefendant has failed to .show prejudicial error.\nNo error.\nHiggins, J., not sitting.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Sea/well and Assistant Attorney General Bniton for the State.", "W. N. Nicholson, James B. Ledford, James J. Randleman and L. Glen Ledford for defendant, appellant." ], "corrections": "", "head_matter": "STATE v. JOHNNIE E. NEWTON.\n(Filed 4 November, 1959.)\n1. Criminal Haw \u00a7 159\u2014\nAssignments o\u00ed error in support of which no reason or argument is given or authority cited in the brief are deemed abandoned.\nS. Criminal Haw \u00a7 156\u2014\nAn assignment of error to the charge for failure of the Court \u201cto declare and explain the law arising on the evidence in the case\u201d and the failure of the Court \u201cto apply the law to the evidence\u201d is a broadside assignment and is ineffectual.\n3. Assault and Battery \u00a7 13\u2014\nWhere the evidence shows an assault on prosecuting witnesses as they drove by defendant\u2019s house and another assault shortly thereafter \u25a0when they turned around and came back to defendant\u2019s house, held the circumstances as to defendant\u2019s conduct at the time of the second \u00e1ssault are relevant as to the defendant\u2019s attitude and intent with reference to the prior incident.\n4. Assault and Battery \u00a7 15\u2014 Instruction on question of assault by pointing and firing rifle held favorable to defendant.\nThe State\u2019s evidence tended to show that when the prosecuting witnesses had gotten some 50 feet beyond defendant\u2019s house in their jeep defendant pointed and fired his riffle in such manner that they were placed in apprehension of their safety, left the scene, and did. not return until they had alerted all patrol ears in the area to come to their aid and had loaded their own weapons, and that after the prosecuting witnesses had turned around and again passed defendant\u2019s house he pointed the weapon directly at them. Held: The evidence is sufiBcient to support a finding that the defendant pointed and fired his rifle toward the jeep and its occupants or toward the area in which the vehicle was proceeding, notwithstanding that one of the witnesses testified that he pointed the rifle \u201cin the general direction of\u201d as well as \u201cin the\" direction of\u201d the witnesses, and an instruction that the jury should find defendant guilty if he shot \u201cin the direction of\u201d the prosecuting witnesses is not prejudicial to defendant.\n5. Assault and Battery \u00a7 5\u2014\nA person who offers or attempts by violence to injure the person of another, or who by a show of violence puts another in fear and thereby forces him to leave a place where he has a right to be, is guilty of an assault.\nHisoins, J., not sitting.\nAppeal by defendant from Mallard, J., May 25, 1959 Special Term, of VANCE.\nCriminal posecution upon two indictments, consolidated for trial, each charging that defendant, on the 22nd day of May, 1959, unlawfully and wilfully assaulted \u2019.the person therein named with a deadly weapon, to wit, a rifle. One indictment (#3490) relates to an alleged assault on Lt. Clyde E. DeBow. The other (#3491) relates to an alleged assault on Ralph E. Deatherage.\nThere was evidence tending to show these facts:\nOn the .afternoon of Friday, May-22, 1959, DeBow and Deatherage, members of the National Guard, were on active State duty in Henderson. Deatherage, operating a jeep, was on patrol duty in the -area of tire North Henderson Mill. Roberson Street, where defendant Jived, was in this area. About 5:30 p.m. Deatherage observed defendant on his front porch cleaning a rifle. There\u00e1fter, Deatherage \u201ckept the house under surveillance.\u201d About seven o\u2019clock, Deatherage met Lt. DeBow at the North Mill Gate. DeBow got into the jeep with him. They rode south on Roberson Street. When they passed defendant\u2019s .house, \u201che was still on the front porch with his rifle.\u201d Shortly thereafter, Deatherage turned around and came back by defendant\u2019s house.\nAccording to DeBow\u2019s testimony: As they passed defendant\u2019s house, traveling north, \u201cthe weapon was raised to his shoulder and aim was taken in this manner (indicating).\u201d (Our italics) \u201cWhen he raised the weapon, I kept my eyes on him.\u201d After passing, DeBow watched defendant through the back window of- the jeep. \u201cWe proceeded by the house about fifty feet and as I watched him through the window, the weapon was discharged in our direction. We were going north and the weapon was pointed north.\u201d In referring to how the rifle was pointed when fired, DeBow used two expressions, namely,\u201cin our direction\u201d and \u201cin our general direction.\u201d\nDeatherage, who was driving the jeep, testified that he \u201cheard the report of the first shot ...\u201d\nDeBow testified: \"... I did not observe the striking bullet. There was (sio) no cartridges striking the jeep.\u201d\nDeatherage and DeBow, \u201cplaced in apprehension of (their) own safety,\u201d continued north on Roberson Street. After giving \u201cthe necessary alert to call in the rest of the M.P. vehicles in the area to that location,\u201d they \u201ccircled back around,\u201d proceeded hack (south) -along Roberson Street toward defendant\u2019s house. Meanwhile, the Guardsmen \u201cput the ammunition in the chambers of (their) weapons as a protective measure.\u201d DeBow testified: \u201cWe proceeded toward, his \u25a0house -and observed him with a rifle still at his shoulder and pointed at us.\u201d Again: \u201cAs we were going away, the weapon was fired in our direction and as we came back the weapon was pointed right at ns.\u201d Deatherage testified: \u201c. . . as we were coming down he had the rifle to hi\u00ae shoulder pointed at us or in our direction. He had it very similar to this (indicating with rifle) pointing it at us.\u201d\nUpon returning, the Guardsmen parked their jeep \u201con the opposite side of the dirt street across from Newton\u2019s store and house combination.\u201d They \u201csat in the vehicle waiting for the other jeeps to come into the area, keeping him under observation at all times.\u201d As they watched him, defendant fired his rifle into the ground, then lowered it and put it down on the bench beside him. On cross-examination by defendant, Deatherage, referring to this firing, stated: \u201cWhen you fired that time you moved it in the direction of the ground.\u201d\nWhen the other jeeps arrived, men were deployed along the street and behind Newton\u2019s house. Defendant told these men: \u201cStay off this damn property, you have no business on this property.\u201d \u201c. . . the word was given to the men to step back across the diitch and stay off his property until we had the Officer of the Day who had a warrant for Newton to give us the right to be on his property.\u201d \u201cAfter a few minutes, Lieutenant Priddy came up with the warrant and' the warrant was read to Newton.\u201d\nAfter defendant\u2019s arrest, a search of his premises was made. Several articles, including a box of .22 cartridges, were found. When the Guardsmen got defendant\u2019s .22 rifle, \u201celeven live rounds\u201d were \u201cin the weapon.\u201d\nDefendant did not testify. Evidence offered by defendant tended to show that he was cleaning his rifle; and that, solely for the purpose of .testing whether it funtioned properly, he fired three shots directly into the ground.\nThe jury, as 'to each indictment, returned a verdict of guilty; and judgments, imposing active sentences, were .pronounced.\nDefendant excepted and appealed, assigning errors.\nAttorney General Sea/well and Assistant Attorney General Bniton for the State.\nW. N. Nicholson, James B. Ledford, James J. Randleman and L. Glen Ledford for defendant, appellant." }, "file_name": "0151-01", "first_page_order": 195, "last_page_order": 200 }