State v. . Mooney

61 N.C. 434

Opinion

Reade, J.

His Honor’s charge “ that in any view of the case, the defendant was guilty,” is so broad as to entitle the’ defendant to a new trial, if there is any view consistent with his innocence.

After a careful consideration .of the testimony, we are obliged to say that in no view of the case is the defendant guilty.

When the defendant ordered the prosecutor and his crowd to leave his house, as he had a right to do, it may have been rude behavior to seize his gun at the same time; but as he did not point his gun, ■ or in any way offer or attempt to use it, there was certainly no assault, which is an offer or attempt, and not a mere threat, to commit violence^ And so the picking úp of the axe within some twenty-five yards of the prosecutor, without an offer or attempt to use it, was not an assault. There is error. This opinion will be certified.

Per Curiam. New trial.