The court suspended judgment upon this motion, and directed a jury to be impaneled to try the issue. Upon the trial it appeared that the prosecutor had given the defendant great provocation and offense, and that the assault and battery which the defendant committed was very trifling, but not justified in law. The defendant was convicted.
The court reserved the consideration of the foregoing motion, and referred the same to this Court; and if the Court should be of opinion that the said appeal ought not to be dismissed, then that they give judgment against the defendant, upon the conviction aforesaid, and the affidavits accompanying the case. A bond, in case of an appeal on the part of the State, is not necessary. Recognizance is sufficient; and it is sufficient that such appeal and recognizance be filed in court at any time before State's day. *Page 532
Judgment that defendant be fined two pounds, and costs.
Cited: State v. Ostwalt, 118 N.C. 1220; State v. Savery, 126 N.C. 1087;State v. Cole, 132 N.C. 1090; State v. Ford, 168 N.C. 166.
NOTE. — The State is not entitled to an appeal from the county to the Superior Court, upon the acquittal of a defendant in a criminal prosecution. State v. Jones, 5 N.C. 257. *Page 533
(634)