dissenting: The bill of indictment did not charge that the defendant was a male person over 18 years of age. The verdict was “Guilty of an assault on a female.”
This Court said in S. v. Jones, 227 N.C. 47, 40 S.E. 2d 458: “ . . . verdicts and judgments in criminal cases ought to be clear and free from ambiguity or uncertainty. The matters involved — the enforcement of the criminal law and the liberty of the citizen — are worthy of exactitude.”
“The judgment and sentence (in a criminal case) must be responsive to, and in accord with, the verdict of the jury, or the finding of the court, where the trial is by the court without a jury; and if the jury, by their verdict have determined the character of the crime, the court cannot go back of it to any fact of record to aid its sentence, since it is the verdict which gives validity and effect to the judgment so far as the character of the crime is concerned.” 24 C. J. S., Criminal Law, Sec. 1579(a).
A court cannot lawfully pronounce sentence for an offense higher in degree or grade than that of which the defendant was convicted. *457S. v. Palmer, 212 N.C. 10, 192 S.E. 896; 24 C.J.S., Criminal Law, p. 98. In the Palmer case the verdict as to Edgar Palmer was “guilty of simple assault.” The judgment as to Edgar Palmer was: “The jury having returned a verdict of simple assault against the defendant Edgar Palmer, the court finds as a fact from the evidence in the case that said simple assault on the part of Edgar Palmer inflicted serious injury to the person of Ernest Bowers, the court finds as a fact that the injuries sustained by the defendant Ernest Bowers, at the hand of Edgar Palmer, to-wit, a broken jaw, serious cuts and lacerations and bruises on the head and face, were serious injuries within the meaning of the law: Therefore the judgment of the court is that the defendant be confined in the common jail, ... , for a period of four (4) months.” This Court found no error in the trial, but remanded the case for a proper judgment, for the reason that upon conviction of a simple assault the court, could not impose a sentence for more than 30 days, or inflict a fine for more than fifty dollars.
In S. v. Lefler, 202 N.C. 700, 163 S.E. 873, the defendant was indicted for an assault and battery upon Dora Shoe, a female, thereby seriously and permanently injuring her. He was convicted of a simple assault, and was sentenced to imprisonment for a term of 12 months. The Court said: “It was not necessary to aver that the ‘man or boy' at the time of the assault was ‘over eighteen years old'; the age of the assailant is a matter of defense. S. v. Smith, 157 N.C. 578; S. v. Jones, 181 N.C. 546. This does not imply, however, that the jury is not required to determine the defendant’s age. ... As pointed out in the same case (S. v. Smith, 157 N.C. 578) there is a presumption of his capacity — a presumption that he is over the age of eighteen; and in the absence of evidence contra the jury would be justified in reaching this conclusion. But the presumption is only evidence and even if there is no testimony in rebuttal it remains evidence for the consideration of the jury. ... In the present case the verdict was, ‘Guilty of simple assault.’ This may have signified an assault without the use of a deadly weapon or without the infliction of serious injury. To justify the sentence imposed the defendant must have been over the age of eighteen years, and as to this there is no finding by the jury. If he was over eighteen years of age the punishment would not be restricted to a fine of fifty dollars or imprisonment not exceeding thirty days, although a deadly weapon was not used and serious injury was not inflicted. In the absence of a finding as to the defendant’s age, we must award a new trial.”
In S. v. Grimes, 226 N.C. 523, 39 S.E. 2d 394, the warrant charged the defendant with “assault on Mrs. J. C. Perkins, a female.” Verdict: “Guilty of an assault on a female as charged in the warrant.” After *458verdict and before judgment, the solicitor moved to amend the warrant so as to charge an assault on a female by a man or boy over eighteen years of age. Objection by defendant; overruled; exception. Judgment: 18 months on the roads. The Court said: “Here, the verdict pronounces the defendant guilty of an assault on a female, simplicitor. No deadly weapon was used and no serious damage was done. Whether the permissible punishment is restricted, or in the discretion of the court, depends upon the age and sex of the defendant. These must appear in order to support a judgment as for an aggravated assault. S. v. Smith, 157 N.C. 578, 72 S.E. 853. . . . Generally, in charges of assault or assault and battery with varying degrees of aggravation, the jury may convict of the assault or assault and battery and acquit, in whole or in part, of the circumstances of aggravation. Citing authority. Questions of jurisdiction and limitation of punishment are dependent upon the offense charged and the plea of the defendant or the finding of the jury. Citing authority. To this general rule, however, there seems to be at least one exception. When a ‘man or boy over eighteen years old’ commits an assault or assault and battery on ‘any female person,’ even though no deadly weapon be used and no serious damage is done, the case is regarded as a general misdemeanor and the punishment is in the discretion of the court. Citing authority. Hence, to take the case out of the general rule and place it in the exception, the jury should determine in its verdict, specifically or by reference to the charge, the circumstances of aggravation which make the offense a general misdemeanor.” The Court held that .there was no error in allowing the solicitor to amend the warrant as it was a matter within the sound discretion of the trial court, but coming as it did after verdict, the amendment was ineffectual to supply the deficiency of the jury’s verdict. So conforming to the precedent of the Letter case, supra, the case was remanded for a venire de novo.
In S. v. Terry, 236 N.C. 222, 72 S.E. 2d 423, the warrant charged the defendant with an assault on a female. The defendant entered a plea of guilty as charged, and was remanded to jail for judgment at a later day during the term. Two days after the defendant’s plea of guilty was entered, the court permitted the solicitor, over the defendant’s objection, to amend the warrant so as to allege that the defendant was over eighteen years of age at the time of the assault. The court found as a fact from the testimony of the defendant’s mother and from the physical appearance of the defendant “that the defendant was 23 years of age at the time of the assault.” Judgment: Imprisonment for two years. This, Court held that the sentence was in excess of that permitted by law for the offense originally charged in *459the warrant to which warrant the defendant pleaded guilty, set it aside, and ordered a new trial upon the warrant as amended.
In S. v. Smith, 157 N.C. 578, 72 S.E. 853, the defendant was indicted for an assault with intent to commit rape. A sentence of imprisonment for two years was upheld on the ground that the verdict was guilty of an assault and battery upon a woman, the defendant being at the time of the assault over eighteen years of age.
In S. v. Lewis, 224 N.C. 774, 32 S.E. 2d 334, the warrant charged that the defendant, a male person over the age of eighteen years assaulted one Ila Mae Holmes, a female person. Verdict: “Guilty as charged in the warrant.” A sentence of imprisonment for two years was sustained on the ground that the jury found by reference to the charge in the warrant the circumstances of aggravation which made the offense a general misdemeanor.
In S. v. Morgan, 225 N.C. 549, 35 S.E. 2d 621, the indictment charged the defendant with an assault to commit rape upon one Margaret Wilson, a female. Verdict: Guilty of an assault upon a female, the defendant being a male person over eighteen years of age. A sentence of imprisonment for eighteen months was upheld. A similar verdict was rendered in S. v. Efird, 186 N.C. 482, 119 S.E. 881.
In the following cases where the indictments did not charge that the defendants were male persons over eighteen years of age, and the verdict did not find that the defendants were male persons over eighteen years of age, sentences of imprisonment for assault on a female person in excess of thirty days were upheld. S. v. Jones, 181 N. C. 546, 106 S.E. 817; S. v. Kiziah, 217 N.C. 399, 8 S.E. 2d 474; S. v. Dickey, 228 N.C. 788, 44 S.E. 2d 207; S. v. Robbins, 246 N.C. 332, 98 S.E. 2d 309.
In S. v. Faison, 246 N.C. 121, 97 S.E. 2d 447, the indictment charged an assault on a female with intent to commit rape, he, the defendant, being a male person over eighteen years of age. Verdict: Guilty of an assault on a female. A sentence of imprisonment for two years was upheld.
In S. v. Stokes, 181 N.C. 539, 106 S.E. 763, the indictment did not charge that the defendant was a male person over eighteen years of age. Plea: Guilty of .an assault on a female. A sentence of imprisonment for three months was sustained.
As the majority opinion correctly states, in the Stokes, Faison, Jones, Kiziah, Dickey and Bobbins cases, the respective defendants did not assign as error a sentence in excess of that authorized by G.S. 14-33, for the reason that the verdict did not find that the defendant was a male person over eighteen years of age, either by specific words in the verdict, or by a verdict of guilty as charged, when the indictment charged *460that the defendant was a male person over eighteen years of age.
What shall we do with these contradictory cases in our Reports? The majority opinion states that S. v. Grimes, supra, should be modified to this extent, that when a male defendant testifies in such cases that he is over eighteen years of age at the time of the assault, and there is no evidence to the contrary, the issue as to defendant’s age need not be submitted to or answered by the jury, for the reason that it is an admission by the defendant upon which the court can rely. With such a holding, I do not agree.
If a person is tried on a warrant charging him with operating an automobile while intoxicated, it being a second offense, and the verdict is simply guilty of drunken driving, can a sentence in excess of the punishment for a first offense be upheld, if the defendant in his trial testified that he had been convicted before of a similar offense? In S. v. Cole, 241 N.C. 576, 86 S.E. 2d 203, the warrant charged the defendant with operating a motor vehicle on a public highway while under the influence of intoxicating liquor, this being a second offense. J. H. Hatcher, a State Patrolman, testified without objection: “This is the second offense of driving under the influence of liquor. He (the defendant) plead guilty on the first offense, approximately two years ago.” The defendant did not testify, and offered no evidence. It seems that the evidence that it was defendant’s second offense of drunken driving was not denied. Verdict: “Guilty.” The Court said: “The judgment entered is stricken and the cause remanded for proper judgment. In remanding the cause for the stated purpose, we observe that, while there is allegation and evidence that defendant had been adjudged guilty of violating G.S. 20-138 on a prior occasion, this feature was in no way submitted to or passed on by the jury. Hence, the verdict cannot be regarded as a conviction of a second offense within the meaning of G.S. 20-179. It is well established that ‘where a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute in order to subject the accused to the higher penalty.’ S. v. Miller, 237 N.C. 427, 75 S.E. 2d 242, and cases cited. ‘Whether there was a former conviction or not was for the jury, not for the court.’ Clark, J. (later C.J.), in S. v. Davidson, 124 N.C. 839, 32 S.E. 957; G.S. 15-147.”
Article I, section 13, of the North Carolina Constitution, guarantees to every person charged with crime the right to a trial by jury, and, upon a plea of Not Guilty, provides that the defendant shall not be convicted of any crime but by the unanimous verdict of a jury in open court. It is the verdict of the jury which gives validity and effect to *461the judgment as to the character of the crime which the defendant has committed. The jury by its verdict in the instant case, to-wit, “guilty of an assault on a female” has determined the character and degree of the offense and the maximum punishment. A sentence of imprisonment based on this verdict cannot exceed thirty days. G.S. 14-33. The sentence here is imprisonment for eighteen months: a sentence not authorized by the jury’s verdict. In my opinion, the Court is not empowered by law to go back of the verdict into the record to uphold a sentence of imprisonment of the defendant of eighteen months, which imprisonment is for an offense higher in degree or grade than that of which the jury convicted him. Where will such a holding lead us? Doesn’t it impair, if not destroy, a person’s constitutional right to a trial by jury?
A sentence of imprisonment for a simple assault on a female in excess of the maximum limit fixed by G.S. 14-33 does not vacate the verdict, but requires that the case be remanded to the lower court for a proper judgment, as authorized by the statute. S. v. Robinson, 245 N.C. 10, 95 S.E. 2d 126; S. v. Austin, 241 N.C. 548, 85 S.E. 2d 924; S. v. Marsh, 234 N.C. 101, 66 S.E. 2d 684; S. v. Malpass, 226 N.C. 403, 38 S.E. 2d 156; S. v. Graham, 224 N.C. 347, 30 S.E. 2d 151.
I think that this case should be remanded to the lower court for a proper sentence upon the verdict. In my opinion, this is a sounder legal position than awarding a new trial.
In my judgment, the cases set forth above sustaining sentences of imprisonment for more than thirty days for assault on a female, when the verdicts did not find by specific words in the verdicts, or by reference to an averment in the indictments, that the defendants were over eighteen years of age at the time of the assault, are wrong in upholding the sentences, and on that specific point should be overruled.
In the Stokes case, supra, and in the Faison case, supra, the pleas were guilty of an assault on a female. I think the Court was in error in sustaining the sentence of imprisonment of three months in the Stokes case, and the sentence of two years imprisonment in the Faison case, on the ground that the sentences were not supported by the pleas.
I take my stand squarely and firmly on the constitutional ground that no person ought to be in any manner deprived of his liberty, but by the law of the land, North Carolina Constitution, Article I, section 17, and that the law of the land requires that a judgment and sentence of imprisonment must be responsive to, and in accord with, the verdict of the jury.
I am authorized to say that Justice Higgins concurs in this dissenting opinion.