State v. Cody

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.