State v. Braxton

144 S.E.2d 5, 265 N.C. 342, 1965 N.C. LEXIS 983

• Court: Supreme Court of North Carolina
• Decided: September 22, 1965
• Status: Published

Opinion

Per CüRiam.

The appellant assigns as error the failure of the court below to sustain His motion for judgment as of nonsuit. In our opinion, the State’s evidence was sufficient to require its submission to the jury, and this assignment of error is overruled.

The defendant assigns as error the failure of the trial judge to charge on self-defense. The State concedes error in this respect. S. v. Greer, 218 N.C. 660, 12 S.E. 2d 238; S. v. Davis, 222 N.C. 178, 22 S.E. 2d 274; S. v. Todd, 264 N.C. 524, 142 S.E. 2d 154.

The appellant likewise assigns as error the imposition of a sentence of six years in the State’s prison on the verdict rendered by the jury. An assault with a deadly weapon with intent to kill is a misdemeanor. G.S. 14-33; S. v. Gregory, 223 N.C. 415, 27 S.E. 2d 140; S. v. Silvers, 230 N.C. 300, 52 S.E. 2d 877; S. v. Troutman, 249 N.C. 395, 106 S.E. 2d 569.

The defendant is entitled to a new trial and it is so ordered.

New .trial.