#### STATE v. CLARENCE CODY.

(Filed 28 February, 1945.)

1. Assault and Battery §§ 7c, 11—

In a criminal prosecution for assault with a deadly weapon with intent to kill, resulting in injury, G. S., 14-32, where the State’s evidence tended to show that prosecutor was in the act of taking money from his cash register, after closing his store for the night, when the defendant, who was definitely identified by both prosecutor and his clerk, shot a gun through the store -window, the load lodging near prosecutor, who ran out of the store and shot a pistol in the direction defendant had gone and was wounded by gunshot in reply from the darkness, threats by defendant against prosecutor being also shown, there is ample evidence to sustain conviction and motion to dismiss under G. S., 15-173, was properly denied.

2. Assault and Battery §§ 7c, 13—

In a prosecution for an assault with a deadly weapon with intent to kill, resulting in injury, where the court charged that one of three verdicts might be returned: (1) guilty of assault with a deadly weapon with intent to kill, inflicting serious injury, not resulting in death, or (2) guilty of assault with a deadly weapon, or (3) not guilty, there being slight, if any, evidence of serious injury, there is no harmful error in the court’s submitting the felony charge to the jury, defendant having been acquitted on that count.

Appeal by defendant from *Pless, J.,*at September Term, 1944, of BuNCOmbe. No error.

Criminal prosecution on bill of indictment charging a felonious assault under G. S., 14-32.

L. S. Sargent, tbe prosecuting witness, operates a place of business near Newbridge on tbe Weaverville Road. On 14 July, 1944, about 11:00 p.m., be bad closed bis store and was standing witb bis back to tbe front in tbe act of taking money from bis casb register when someone in front and on tbe outside fired a gun. Tbe load went through tbe window and lodged near Sargent. Tbe overhead lights in front were on. Both Sargent and an employee in tbe store immediately looked and saw defendant in front, going across tbe road. He bad a gun. No one else was out in front. Sargent got bis pistol, ran out, and began shooting in tbe direction defendant bad gone. There was another gunshot from that direction and a part of tbe load lodged in Sargent’s shoulder.

About 10 :45 on tbe same night defendant went to tbe home of a Mrs. Hicks who lived near Sargent’s place of business and got bis gun be bad previously loaned her. He also got two shells. A few minutes before tbe shooting be was beard to say be was going to “get even witb Sarge (Sargent)” and one Wilson. He was then near Sargent’s-place of busi*39ness. He went to Wilson’s borne and repeated tbis statement about fifteen minutes after tbe shooting.

Tbe defendant having offered no evidence in rebuttal, tbe cause was submitted to tbe jury on tbe testimony of tbe State. Tbe jury returned a verdict of “guilty of an assault with a deadly weapon.” From judgment on tbe verdict defendant appealed.

*Attorney-General McMullan and Assistant Attorneys-General Rhodes and Moody for the State.*

*J.*TF. *Haynes for*defendant, *appellant.*

Barnhill, J.

Defendant’s primary assignment of error is directed to tbe refusal of tbe court to dismiss on motion made under G. S., 15-173, C. S., 4643. He insists there was insufficient evidence of tbe identity of tbe defendant. In tbis we are unable to concur.

Tbe defendant was definitely identified by two witnesses as tbe person who was in front of tbe building at tbe time tbe shot was fired. He bad a gun. No one else was there. He bad just a few minutes before avowed bis purpose to “get even with Sarge.” Thus tbe testimony tends to show. Tbis evidence was amply sufficient to repel tbe motion to dismiss and to sustain tbe verdict. Its credibility was for tbe jury.

Tbe other exceptive assignments of error are directed to alleged error in tbe charge of tbe court. After careful consideration we are unable to find in them any cause for disturbing tbe verdict.

Tbe court instructed tbe jury that they might return any one of three verdicts: (1) guilty of an assault with a deadly weapon with intent to kill, inflicting serious injury, not resulting in death, or (2) guilty of an assault with a deadly weapon, or (3) not guilty. It fully explained tbe constituent elements of each of tbe two offenses.

There is very slight, if any, evidence of serious injury within tbe meaning of tbe statute. Thus, if there was error in tbe instructions, -it rests in tbe fact that tbe court submitted tbe felony charge to tbe jury. Even so, on this count there was a verdict of not guilty. Hence defendant has not been prejudiced thereby.

In tbe trial below we find

No error.