(Filed 27 November, 1957)
Assault and Battery § 15—
Instruction on defendant’s plea of self-defense in this prosecution for assault with a deadly weapon held prejudicial on authority of S. v. Warren, 242 N.C. 581.
Appeal by defendant from McKeithen, S. J., at February 1957 Criminal Term (Second Week) of Cumberland.
Criminal prosecution upon bill of indictment as certified to this Court upon suggestion of diminution of record, charging “that Charles M. Muscat, late of the County of Cumberland on the 24 day of July, 1956, at and in the county aforesaid, did, unlawfully, willfully and feloniously assault John W. Blake, Sr., with a certain deadly weapon, to wit, .45 caliber pistol with the felonious intent to kill and murder the said John W. Blake, Sr., inflicting serious injuries not resulting in death, upon the said John W. Blake, Sr., against the form of the statute in such case made and provided and against the peace and dignity of the State.”
Plea: Not guilty.
Verdict: Guilty as charged.
Judgment: That defendant be confined in the State Prison for a period of not less than five (5) nor more than eight (8) years and assigned to work under supervision of the State Highway and Public Works Commission.
Defendant Charles M. Muscat appeals therefrom to Supreme Court and assigns error.
Attorney General Patton, Assistant Attorney General Harry W. McGalliard for the State.
Butler & High, Ervin I. Baer for defendant appellant.
Per Curiam:
Certain portion of the charge of the trial judge to the jury in respect to defendant’s plea of self-defense, to which defendant excepts, while proper in trial of a homicide case, the Attorney General confesses is improper in instant case, and is prejudicial to defendant, under authority of S. v. Warren, 242 N.C. 581, 89 S.E. 2d, 109; S. v. Cephus, 239 N.C. 521, 80 S.E 2d, 147; S. v. Carver, 213 N.C. 150, 195 S.E. 349.
Hence let there be a
New trial.