#### STATE v. R. A. STRICKLAND.

(Filed 6 October, 1926.)

1. Instructions — Criminal Law — Evidence—Directing Verdict.

Where from all the evidence both for the State and the defendant on a trial for a criminal offense, only the inference of guilt can be legally inferred, an instruction to the jury is proper to find the defendant guilty should they so find the facts to be beyond a reasonable doubt.

2. Same — Assault—Statutes—Intent to Kill.

Where the indictment charges an assault with a deadly weapon with intent to kill, etc. (C. S., 4213, 4214, 4215), and all the evidence both for the State and for the defendant tends to show that the defendant himself brought on the fight by aggression, and that the prosecuting witness had been injured by being struck by some hard metallic substance in the defendant’s hand, which he did not see, causing his nose to be broken and other serious injuries: *Held,*an instruction directing a verdict of guilty of at least simple assault is not erroneous.

3. Instructions — Appeal and Error — Criminal Action — Assault—“Serious Injury’ ’ — Prejudice.

Where the defendant has been convicted of an assault inflicting serious injury, an instruction defining “serious injury” if prejudicial, will not be held as reversible error if from all the evidence it unmistakably appears that a serious injury had been inflicted on the prosecuting witness by the defendant.

Appeal from *Cranmer, J.,*and a jury, at June Term, 1926, of Halifax. No error.

Material facts stated in the opinion.

*Attorney-General Brummitt and Assistant Attorney-General Nash for the State.*

*George C. Green and Travis & Travis for defendant.*

*254Claricson, J.

The bill of indictment contains two counts: (1) “Did unlawfully, wilfully, feloniously and maliciously assault, beat and wound one H. M. Rowland with a deadly weapon, to wit, metallic knucks, by waylaying, and otherwise in a secret manner with intent, him the said II. M. Rowland, then and there feloniously, wilfully and of his malice aforethought to kill and murder to the great damage of the said H. M. Rowland.” C. S., 4213.

(2) “Unlawfully, wilfiilly and feloniously with a certain deadly weapon, to wit, metallic knucks, in and upon one H. M. Rowland did make an assault, with an intent him, the said H. M. Rowland, then and there feloniously, wilfully and of his malice aforethought to kill and murder and upon him the said H. M. Rowland, did inflict serious injury not resulting in death, to wit, breaking his nose, wounding his temple,” etc. C. S., 4214.

C. S., 4215, is as follows: “In all cases of an assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court: *Provided,*that where no deadly weapon has been used and no serious damage done, the punishment in assaults, assaults and batteries, and affrays shall not exceed a fine of fifty dollars or imprisonment for thirty days; but this proviso shall not apply to cases of assault with intent to kill or with intent to commit rape, or to cases of assault or assault and battery by any man or boy over eighteen years old on any female person.”

The verdict of the jury “who say for their verdict, that the defendant is guilty of an assault without a deadly weapon, inflicting serious injury.”

The court below charged the jury as follows: “Now,- under the bill as drawn, gentlemen of the jury, I instruct you that you may render one of five verdicts. You may convict him on the first count which I have read to you, or you may convict him on the second count, which I have read to you. You may convict him of assault with a deadly weapon, or you may convict him of assault with serious damage, or you may convict him of simple assault. *And I instruct you that, in no event, can you acquit the defendant for the reason that, if you believe the testimony heard by you in the case, including the testimony of the defendant himself, it is your duty to convict him at least of simple assault*

To the latter part of the charge the defendant excepted and assigned error.

In that immediate connection, the court below instructed the jury that the burden was upon the State to satisfy them beyond a reasonable doubt as to the four charges in the bill. As to the fifth the instruction *255amounts in practical effect to telling tbe -jury that if they believed tbe testimony of tbe defendant bimself be was at least guilty of simple assault.

C. S., 4640, is as follows: “Upon tbe trial of any indictment tbe prisoner may be convicted of tbe crime charged therein or of a less degree of tbe same crime, or of an attempt to commit tbe crime so charged, or of an attempt to commit a less degree of the same crime.”

In *S. v. Murphrey,*186 N. C., at p. 115, it is said: “In *S. v. Riley,*113 N. C., 648, *Clark, J.,*observed: ‘The evidence for tbe State being uneontradicted, tbe court told tbe jury, if they believed tbe evidence, to return a verdict of guilty. This was correct, upon tbe evidence set out, and if tbe jury bad returned a verdict, there would be no ground for exception’; and in *S. v. Hill,*141 N. C., 769, *Hoke, J.,*concluded that where, in any aspect of tbe testimony, tbe defendant’s guilt is manifest, tbe judge may tell tbe jury, ‘if they believe tbe evidence,’ or ‘if they find tbe facts to be as testified,’ ‘they will return a verdict,’ etc. *S. v. Woolard,*119 N. C., 779; *S. v. Winchester,*113 N. C., 641. Our conclusion is not at variance with tbe decision in *S. v. Singleton,*183 N. C., 738, or *S. v. Estes,*185 N. S., 752, for in each of these cases it was held that tbe evidence, if true, did not necessarily establish tbe guilt of tbe defendant, and that under a proper charge tbe matters in controversy should have been submitted to tbe jury. We have directed attention to tbe fact that tbe testimony in tbe case at bar is uncontradicted; but even in instances of this character it would be more satisfactory if tbe court’s instruction to tbe jury followed tbe usual formula on tbe question of ‘reasonable doubt.’ ” *S. v. Moore, ante,*209.

“Tbe principle does not apply where tbe evidence, if true, is suceptible of more than one deduction.” *S. v. Moore, supra; S. v. Horner,*188 N. C., 472; *S. v. Hardy,*189 N. C., 799.

Is tbe evidence, if true, susceptible of more than one deduction? We think not. Tbe testimony of tbe defendant on this aspect, is as follows: “I told Rowland this and be said, ‘That’s a damn lie.’ And I said, ‘Mr. Rowland, if that’s tbe way you feel about it I think you ought to be whipped.’ And be said be was a professional boxer, and if I wanted to fight, ‘Here’s at it.’ And be put bimself in a boxing attitude, and tbe fight began. He struck at me first, and I warded tbe blow off. I can’t say who stopped fighting first. We both stopped, and I walked back and got in tbe car and Mr. Rowland walked behind me up to tbe car, and I drove off and left him standing there. ... I told him if be felt that way about it be ought to be whipped, and be said, ‘If you want to fight, here’s at you.’ I bit Mr. Rowland *because he called me a damn lie;*be bit me first, or struck at me first, and I knocked bis lick off. . . . *256No, my wife did not call to me and say, ‘Come on back to this car and stop beating up this man,’ *when Rowland, and myself were fighting*

In *S. v. Williams,*186 N. C., 631, it is said: “In *Humphries v. Edwards,*164 N. C., 158, *Walker, J.,*says: ‘We extract the following principle from *S. v. Daniel,*136 N. C., 571: “Tbe principle is well established that not only is a person who offers or attempts by violence to injure the person of another guilty of an assault, but no one, by the show of violence, has the right to put another in fear and thereby force him' to leave a place where he has the right to be. *S. v. Hampton,*63 N. C., 13; *S. v. Church,*63 N. C., 15; *S. v. Rawles,*65 N. C., 334; *S. v. Shipman,*81 N. C., 513; *S. v. Martin,*85 N. C., 508; 39 Am. Rep., 711; *S. v. Jeffreys;*117 N. C., 743.” ’ ”

The defendant hunted Rowland and when he found him approached him in a threatening way — when what is quoted above occurred. Certainly this was an entire willingness to fight on the part of the defendant and the fight ensued, there being no element of self-defense in this testim'ony. Under the evidence here, the right of self-defense did not exist, if the defendant did not start the fight, he willingly and wrongfully entered into it and so testified. *S. v. Perry,*50 N. C., 9; *S. v. Lancaster,*169 N. C., 284 ; *S. v. Crisp,*170 N. C., 785; *S. v. Baldwin,*184 N. C., 789. This assignment of error cannot be sustained.

The next assignment of error is to the following part of the charge of the court below: “Now, as to the question of serious damage, gentlemen of the jury, must be such physical injury as gives rise to great bodily pain, and also damage to the peace, good order, decency and propriety of society. I further instruct you, gentlemen, that if an assault is of such nature as to damage greatly the person of the party assaulted, or if it is calculated to outrage, stir up and disturb the quiet and good order of a community, or shock the moral sense of good citizens, it is serious damage.” To sustain the latter part of the charge, Mr. Nash refers to *S. v. Huntley,*91 N. C., at p. 621; *S. v. Shelly,*98 N. C., 673, which seem to bear out the State’s contention.

The prosecuting witness, H. M. Rowland, testified in part, in substance: That he had been for two years superintendent of the Scotland Neck Graded Schools; that about a quarter to nine, on the night of 30 April, he was about the middle of the block on the north side of the street in the business section of Scotland Neck. The defendant came up in his car and stopped and asked if he could speak to him, and he answered that he certainly could. Defendant got out of his car and came to him on the sidewalk and started talking about an incident that happened in the school in regard to his child having been whipped. The witness told defendant that he had not whipped his child; that while he was talking about the whipping of the child, totally off his guard, a *257heavy, solid object struck him across tbe temple; tbat be was bit four or five licks in several places about tbe bead; tbat it *broke his nose*and injured bis eye, so be was unable to do any reading since, and tbe place on bis bead bad been painful from tbat day until tbis. Tbe object defendant bad on bis band struck tbrougb three thicknesses of clothing heavy winter underwear, shirt and coat, and cut and left bis arm bruised, a mass of welts and in several places tbe blood bad been' cut out. Defendant continued until be winded himself. "Witness bad blood in bis eyes until be could not see. Blood from bis bead and face bad gotten into bis eyes and blinded him. He could bear defendant breathing heavily as be got into bis car. His physical condition has been highly nervous, extremely weak and pains in bis bead ever since. There is a stoppage in tbe nose which interferes with respiration and bis sleep is irregular — unable to sleep and has headaches, nervous and eyes give trouble. Tbe wound on bis bead bled very freely. He was bit with something heavy and metallic which defendant bad on bis band. Tbe witness did not see tbe child whipped, but understood tbat be was tbe one tbat was whipped. “Defendant told me tbat be understood tbat I bad treated tbe child very unkindly and bad bandied him roughly, and I said, ‘Some one has been lying to you.’ I did not see tbe deadly weapon, but felt it very deadly.”

Dr. Smith testified: “I made an examination of tbe injuries of Mr. Rowland on 30 April, around 9:00 or 9 :30 o’clock p. m., at bis home. He bad a number of bruises and cut places on bis bead and face. He bad cut place on top of bis bead, also on bis forehead and bis left cheek, and a gash on bis temple. His arm was bruised in several places. His eye was swollen and bloodshot, *his nose was broken.*In mjy opinion tbe injuries upon tbe face and bead and arm of Mr. Rowland could not have been inflicted by fist alone, nor with a ring with setting like tbat, but were made with some bard metal object.”

There is no dispute on tbe record tbat tbe prosecuting witness’ nose was broken — tbis was serious damage or injury.

Tbe fight was admittedly willing by defendant on bis part — tbe prosecutor’s nose was broken by him. On tbe entire undisputed evidence, if believed by tbe jury, they were clearly correct in tbe verdict rendered: “Defendant is guilty of an assault without a deadly weapon inflicting serious injury.” Tbe jury, from tbe evidence, could have found defendant guilty of a higher crime, but on tbe undisputed evidence, surely not of a less crime. Tbe charge of tbe court, if error, cannot, on tbe record, be held harmful or prejudicial.

For tbe reasons given, there is

No error.