State v. Merritt, 61 N.C. 134, 1 Phil. 134 (1867)

Jan. 1867 · Supreme Court of North Carolina

61 N.C. 134, 1 Phil. 134

THE STATE v. MURDOCH MERRITT and MARION MERRITT.

An indiscriminate assault upon several persons is an assault upon each.

The facts being that the gun in question was fired by one of two defendants, whilst the other was present aiding and abetting, Held, that a charge in the indictment that both committed the assault was thereby made good.

Assault, with intent to kill, tried before his Honor, Barnes, J., at Fall Term, 1866, of Duplin.

The indictment charged that both of the defendants made an assault upon Lipman Aarons, with an intent to kill him.

The evidence showed that whilst Aarons and his wife, daughter and son, were sitting one night upon the front piazza of his house, during the fall of 1866, a gun was fired at them, the shot passing between them, and lodging in the wall of the house. The other evidence, consisted of circumstances and confessions, and showed that the defendants were together at the time the gun was shot by one of them.

Under the charge of his Honor the jury found the defendants guilty; and thereupon, having moved for a new trial unsuccessfully, and having been sentenced, they appealed.

Attorney General, for the State.

No counsel for the defendants.

Reads, J.

There was no specific instruction prayed for,, and no specific exception taken below or in this court. We-are therefore left to collect from the whole of the Judge’s charge and from the record, whether there was any error.

Only two questions seem to be involved:

1. Whether an indiscriminate assault upon several is an assault upon each individual ? Very clearly it is.

2. Whether when a gun is fired by one defendant, andl the other is present aiding and abetting, the shooting may be charged to have been done by both ? The act of one is-the act of both, and it may be so charged.

Let it be certified that there is no error.

Per Curiam. There is no error