The evidence discloses, first, a simple assault when neither the defendant nor the prosecuting witness was armed with a deadly weapon, then, later, an assault with a gun. The defendant contended that all he did in the second encounter was to defend himself.
In this state of the record, the court should have submitted for the jury’s consideration the question of simple assault. S. v. Merrick, 171 N. C., 788, 88 S. E., 501. The rule is, that when it is permissible under the bill, as here, to convict the defendant of “a less degree of the same crime” (G. S., 4640), and there is evidence tending to support a milder verdict, the case presents a situation where the defendant is entitled to have the different views presented to the jury, under a proper charge, and an error in this respect is not cured by a verdict convicting the defendant of a higher offense charged in the bill of indictment, for in such event it cannot be known whether the jury would have convicted of a less degree of the same crime if the different views, arising on the evidence, had been correctly presented in the court’s charge. S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Lutterloh, 188 N. C., 412, 124 S. E., 752; S. v. Robinson, 188 N. C., 784, 125 S. E., 617; S. v. Williams, 185 N. C., 685, 116 S. E., 736.
While the first affray, in which no deadly weapons were used, may have been the cause of the second and more serious one (S. v. Bailey, 205 N. C., 255, 171 S. E., 81, S. v. Bryson, 203 N. C., 728, 166 S. E., 897), nevertheless the jury might have found, had the whole case been submitted to it, that the defendant was in the wrong only in the beginning. At least, this is a permissible interpretation of the record.
For the error as indicated, a new trial must be awarded. It is so ordered.