#### STATE v. JUNIOR TERRY.

(Filed 24 September, 1952.)

1. Criminal Law § 76a—

Where petition for writ of *certiorari*filed by defendant in apt time to bring up tbe record and case on appeal on his original appeal is denied, and upon a later appeal from denial of defendant’s motion in the trial court to strike out the original.judgment, it appears that the Court, in denying the petition for *certiorari,*had inadvertently overlooked matters showing probable error in the trial, the Supreme Court will reconsider the petition for *certiorari*and grant the petition in order to prevent injustice.

2. Criminal Law § 60b—

Where defendant enters a jffea of guilty to a warrant charging an assault upon a female and nothing more, the trial court is without authority, upon a later amendment of the warrant to charge that defendant was a male person over eighteen years of age, to enter judgment on the amended warrant in the absence of a verdict of a jury or a plea of guilty by defendant to the warrant as amended, and sentence in excess of that permitted by law for the offense originally charged in the warrant will be set aside and cause remanded for trial upon the warrant as amended.

Appeal by defendant from *Rudisill, J.,*May Term, 1952, RockiNgham.

Tbis appeal arises from an adverse judgment upon defendant’s motion to strike tbe original judgment from tbe record.

Tbe defendant was tried at tbe August 1951 Term of tbe Superior Court of Rockingham County upon a warrant charging that be “did commit an assault on a female, to wit: Mrs. Gold Lawson, by knocking her down and putting her in great fear and causing injury to her body contrary to tbe form of tbe statute and against tbe peace and dignity of tbe State.” Defendant entered a plea of “guilty” as charged and was remanded to jail for judgment at a later date during tbe term. Two days after tbe plea of guilty was entered, the solicitor moved to amend tbe warrant to include an allegation that tbe defendant was a male person over 18 years of age. Tbis motion was allowed over defendant’s objection. Tbe defendant never pled guilty to the warrant as amended nor was tbe case submitted to a jury. Tbe court, however, found as a fact from tbe testimony of tbe defendant’s mother and from tbe physical appearance of tbe defendant, who was then in court, “that tbe defendant was 23 years of age at tbe time of tbe assault.” Thereafter, during tbe term, judgment was entered sentencing tbe defendant to be “confined in tbe common jail of Rockingham County for a period of two years to be assigned to work on tbe roads under tbe control and supervision of tbe State Highway and Public Works Commission.” From tbis judgment, defendant in open court gave notice of appeal.

*223Oil 30 August, 1951, tbe solicitor accepted service of defendant’s statement of ease on appeal, wbieb was filed in tbe office of tbe Clerk of Superior Court of Rockingham County on tbe following day. On 10 September, 1951, tbe solicitor served a countercase upon D. Floyd Osborne, wbo was a member of defendant’s legal staff during tbe trial and wbo bad since attempted unsuccessfully to withdraw from tbe case. Tbe counter-case was never served upon tbe defendant nor upon Robert S. Gaboon, wbo still represents defendant. On 21 September, 1951, Judge Rousseau made an order settling tbe countercase as tbe statement of tbe case on appeal.

On 25 September, 1951, defendant filed in this Court bis petition for writ of *certiorari,*to which was attached an uncertified copy of bis statement of case on appeal. On 29 September, 1951, a copy of defendant’s statement of case, accompanied by two certificates of tbe Clerk of Superior Court of Rockingham County, was filed in this Court. Tbe first certificate, dated 31 August, 1951, was not under seal and certified that defendant’s statement of case on appeal constituted tbe case on appeal and that no countercase bad been filed; and tbe second, dated 28 September, 1951, with Clerk’s seal affixed, certified that said papers constituted a true and correct copy of defendant’s statement of case on appeal. The latter certificate also recited that tbe first certificate was returned to tbe clerk at bis request. Tbe statement of tbe case on appeal as settled by tbe presiding judge was certified to this Court and filed here on 26 September, 1951.

On 28 September, 1951, defendant filed in this Court a motion to strike tbe purported case on appeal as settled by tbe trial judge and to substitute in its place tbe defendant’s statement of ease on appeal. Defendant asked that bis motion be included in and as a part of bis petition for writ of *certiorari.*Tbe effect of defendant’s motion and bis petition for writ of *certiorari*was a request that this Court state and settle tbe statement of case on appeal.

Tbe Attorney-General in apt time moved that defendant’s appeal be dismissed and tbe judgment of tbe lower court affirmed under Rule 17, for failure to perfect'the appeal. This motion was allowed on 30 October, 1951.

On 19 May, 1952, defendant moved in tbe Superior Court of Rocking-ham County to strike tbe original judgment on tbe ground that bis constitutional rights bad been violated. This motion was denied and defendant excepted and appealed, assigning error.

*Attorney-General McMullan and Assistant Attorney-General Bruton for the State.*

*Robert S. Gaboon for defendant, appellant.*

*224Valentine, J.

Matters in the record on this appeal direct our attention to the petition for a writ of *certiorari,*filed by the defendant in apt time to bring up the record and case on appeal on his original appeal, which was denied for the reason defendant had failed to show merit or probable error in the trial. A re-examination of that petition and the exhibit attached thereto disclose that the petition does show probable error which we then inadvertently overlooked. *We,*therefore, upon a reconsideration of the petition for writ of *certiorari,*now grant the same and consider the record on this appeal as due return to the writ. ■

When defendant’s plea of guilty was tendered and accepted by the State, the warrant charged an assault upon a female and nothing more. It contained no allegation that a deadly weapon was used or that serious damage was done or that defendant was a male person over 18 years of age. G.S. 14-33. This is the warrant to which defendant’s plea of guilty speaks.

The finding by the court that the defendant was 23 years of age at the time of the assault could not suffice to bring the defendant within the warrant as amended. Only a plea of guilty to or a jury verdict upon the warrant as amended could subject the defendant to the punishment prescribed for an assault upon a female person by a man or boy over 18 years of age. The punishment for the crime to which the defendant pled guilty is restricted to a fine of not more than $50.00, or imprisonment not in excess of 30 days, or both.

To justify a sentence of imprisonment for two years for a simple assault upon a female person by a man or boy, where no serious damage was done, the defendant must have been over 18 years of age, and this fact must have been asserted in the warrant and found by the jury with the other necessary elements of the crime, or established by defendant’s plea of guilty. However, an exception to this rule arises when a defendant is charged with an assault on a female resulting in serious and permanent injury. In which case, the defendant could plead guilty to or be convicted of “a less degree of the same crime charged,” which could include an assault on a female by a male person over 18 years of age. This is not the situation here. The opinion of and the cases cited by the late *Chief Justice Stacy,*in *S. v. Grimes,*226 N.C. 523, 39 S.E. 2d 394, constitute complete authority for the position here taken with respect to this aspect of the case. Upon what was there so ably said, we must conclude that the learned and painstaking judge below exceeded his authority .in sentencing the defendant to two years in prison upon defendant’s plea of guilty to the charge contained in the warrant as originally drawn.

It wonld be a manifest injustice to allow an unlawful sentence upon defendant’s plea of guilty to stand. It would also be an injustice to send this case back for a corrected sentence. It appears under all the eircum-*225stances tbat tbe ease should be remanded for trial upon tbe warrant as amended. Indeed, tbat is tbe end sought by tbe defendant.

For tbe error pointed out, tbe case is remanded for a

New trial.