STATE of North Carolina
v.
Homer BEAVER.
No. 7219SC301.
Court of Appeals of North Carolina.
May 24, 1972.*578 Atty. Gen. Robert Morgan by Asst. Atty. Gen. T. Buie Costen, for the State.
H. Wade Yates, Asheboro, for defendant appellant.
GRAHAM, Judge.
Defendant contends the court erred in denying his motion to quash the warrant.
At the time the court ruled on defendant's motion to quash, it was impossible to know whether defendant was being charged with a single assault in which he allegedly used both a gun and a rock or two separate assaults. The State's evidence, however, tended to show two separate and distinct assaults.
The first purported assault arose out of an argument that occurred when defendant and a companion exchanged words with the prosecuting witness as they walked along a public road in front of the prosecuting witness's home. At that time, defendant threw a rock which struck and broke the prosecuting witness's thumb as the witness, brandishing a tree limb, started into the street toward defendant and his companion. Defendant left the scene, went to his house, and several minutes later returned with a shotgun. It was at this time that the alleged shooting took place.
Ordinarily an indictment which charges two separate offenses in a single count is bad for duplicity. State v. Dale, 218 N.C. 625, 12 S.E.2d 556; State v. Lewis, 185 N.C. 640, 116 S.E. 259. When a defendant moves in apt time to quash the warrant on the ground of duplicity, the solicitor is faced with an election. He may take a nol pros as to all of the charges except one and then proceed to trial on the one charge, State v. Williamson, 250 N.C. 204, 108 S.E.2d 443; State v. Cooper, 101 N.C. 684, 8 S.E. 134, or he may upon motion and leave of court amend the warrant and state in separate counts the charges upon which he desires to proceed, provided they were originally set out in the warrant. State v. Williamson, supra. We are of the opinion that defendant in this case was entitled to have the solicitor elect.
The record indicates that, in ruling on defendant's motion to quash, the court regarded the allegations concerning the rock assault as surplusage. If these allegations had been treated as surplusage throughout the trial, prejudicial error would not likely have occurred. However, the court charged the jury that it could find the defendant guilty if it found that he assaulted the prosecuting witness with a rock and the rock was a deadly weapon, or if it found defendant assaulted the prosecuting witness with a shotgun. The State argues that defendant has not been prejudiced because he was tried and convicted for only one assault; whereas, he could have been tried and convicted for two separate *579 assaults if the charges had been stated in separate counts in the warrant. Assuming for purposes of argument that this is true, we find that prejudicial error nevertheless appears in the charge.
The jury verdict may represent a finding that defendant committed no assault in firing the shotgun, but that he did commit an assault in throwing the rock. (Defendant's evidence tended to indicate that he fired the gun into the air while standing near his own home and that he did not aim the gun in the direction of the prosecuting witness.) While there was no evidence from which the jury could find that defendant was acting in self-defense when he fired the shotgun, there was evidence tending to show that he was legitimately defending himself when he threw the rock. Defendant requested the court to instruct the jury relating to self-defense "in the charge of assault with a deadly weapon, to wit: a rock." This request was refused.
We summarize some of the evidence pertinent to defendant's plea of self-defense with respect to the charge of assault with a rock.
At the time the rock was thrown, defendant was on a public street and was being chased by the prosecuting witness who had a tree limb two and a half feet long. The prosecuting witness stated: "Yes, I did start chasing him with that limb. Yes, he started running, his feet wouldn't hold him. . . . As to what I was saying to Homer Beaver as I was going after him with that limb in my hand, I told him to hold up. I told him I was going to slap him right up the side of the head with that limb. I would have done it and I will still do it. . . . As to what I meant when I said I was going to put him out of his misery I was not going to kill him. I probably would have knocked him unconscious with that limb, if I had got hold of him. My intentions was shutting up that big mouth of his. In answer to your question `And you were going to shut it up if you had to kill him or knock him unconscious with that big limb and anything it took to do it?' my answer is `Anything it took to do it.'"
Defendant's companion testified: "Homer and myself picked up a rock in front of Mrs. Carrico's and we both threw the rock. Whichever one of us hit him, I'd say I threw one as well as he did. At the time we threw the rocks Mr. Hunt was swinging the stick. He was going up the center of the road swinging that stick. Yes sir, he was going in the direction of Homer and me, and swinging the stick."
While there was no specific evidence indicating how close the prosecuting witness got to defendant before defendant threw the rock, there was evidence tending to show that at the time defendant threw the rock, he was backing up as the prosecuting witness came toward him swinging the tree limb.
In the absence of an intent to kill, a person may fight in his own self-defense to protect himself from bodily harm or offensive physical contact, even though he is not put in actual or apparent danger of death or great bodily harm. State v. Chaney, 9 N.C.App. 731, 177 S.E.2d 309. We hold that the evidence required an instruction as to this principle with respect to the charge that defendant committed an assault by use of a rock.
New trial.
MORRIS and VAUGHN, JJ., concur.