State v. . Hight

32 S.E. 966, 124 N.C. 845, 1899 N.C. LEXIS 131

Opinion

Haircloth, C. J.

The defendant stands indicted, first, for an assault with intent to commit rape; and second, for a simple assault. At the close of the evidence his Honor properly instructed the jury that there was no evidence of an assault with intent to commit rape. The jury rendered a verdict of “guilty.” The defendant was sentenced to work on the roads for twelve months.

There must be a new trial. The general verdict “guilty” applies to the first count as well as to the second. The jury should have said on which count he was guilty, in order that the proper punishment might follow. His Honor seems to have understood the verdict to be on the first count as he imposed a longer term of imprisonment than is allowed for a simple assault, i. e., 30 days. Code, Sections 987 and 892; State v. Nash, 109 N. C., 837; State v. Johnson, 94 N. C., 863; State v. Albertson, 113 N. C., 633.

New trial.