State v. Stansberry
State v. Baxter Stansberry.
Opinion of the Court
Stacy, C. J.
The trial court evidently had more facts before it than appear in the agreed case on appeal. But we are bound by the record as it is sent up.
S. v. Harbert, 185 N. C., 760 , 118 S. E., 6 .
Conceding that the evidence may be sufficient to carry the .case to the jury on the theory of an assault and battery (S. v. Hemphill, 162 N. C., 632 , 78 S. E., 167 ), still we think the trial court erred in submitting it on the assumption that sufficient show of force or threat of violence had been offered by the defendant to put the prosecutrix in fear and thereby cause her to leave from where she was, or to desist from going to the spring. She does not say that the defendant’s conduct was. the cause of her leaving or going back to the schoolhouse. Nor does she say that she was put in fear by him. On the other hand, she says she was *352 afraid to go to the spring because she did not know “who all was over there.” The defendant said nothing, not a word, out of the way to the prosecuting witness.’
S. v. Daniel, 136 N. C., 571 , 48 S. E., 544 .
On the record as presented, the defendant is entitled to have the judgment vacated and a new trial awarded. It is so ordered.
New trial.
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