The prosecutor, with some other persons, had gone to Mooney's house, and, after some conversation, a quarrel arose, in the course of which insulting language was used by both parties. Thereupon the defendant ordered the others to leave his house. At or about the same time he seized his gun; the witnesses differing as to whether he did this immediately, or after finding that the prosecutor and his party did not leave. A scuffle for the gun ensued between the defendant and some members of his own family, and the latter finally got possession of it. The defendant did not present it or attempt to make use of it. As the prosecutor and his friends were leaving the premises the defendant followed them and seized an axe, getting near enough to throw it, but the witnesses differed as to whether he was near enough to strike with it. He did not attempt to use it. Subsequently, upon being dared to come out, he advanced again with the axe but did not get nearer to them than twenty-five or thirty yards.
The court charged the jury that in any view of the testimony an assault had been committed by the defendant with both the gun and the axe.
Verdict, "Guilty," Rule for a new trial discharged. Judgment and appeal. His Honor's charge "that in any view of the case, the defendant was guilty," is so broad as to entitle the defendant to a new trial, if there is any view consistent with his innocence.
After a careful consideration of the testimony, we are obliged to say that in no view of the case is the defendant guilty.
When the defendant ordered the prosecutor and his crowd to leave his house, as he had a right to do, it may have been rude behavior to seize his gun at the same time; but as he did not point his gun, or in any way offer or attempt to use it, there was certainly no assault, which is an offer or attempt, and not a mere threat, to commit violence. And so the picking up of the axe within some twenty-five yards of the prosecutor, without an offer or attempt to use it, was not an assault.
There is error. This opinion will be certified.
PER CURIAM. New trial.
Cited: S. v. Church, 63 N.C. 16; S. v. Milsaps, 82 N.C. 551; S. v.Daniel, 136 N.C. 577; S. v. Garland, 138 N.C. 681; S. v. R. R.,145 N.C. 571.