State v. . Dingle

Stacy, O. J. The evidence on behalf of the State tends to show that on Sunday morning, 28 April, 1935, about daybreak, the defendants went to the home of John Gant in Forsyth County-with intent to rob him, which they did, and in carrying out their purpose the defendant Williams struck Gant over the head with a piece of iron, inflicting mortal injuries. They then took his money and divided it between them. *294 The defendants were tried at the July Term, 1935, of Forsyth Superior Court, convicted and sentenced to death by asphyxiation. The judgment is erroneous, as the homicide occurred prior to 1 July, 1935, the day on which the statute changing the mode of execution from electrocution to asphyxiation went into effect. S. v. Hester, ante, 99. The defendants gave notice of appeal in open court, and were allowed to prosecute same in forma pauperis. No brief has been filed by the appellants in this Court, which works an abandonment of the assignments of error, S. v. Hooker, 207 N. C., 648, 178 S. E., 75; S. v. Lea, 203 N. C., 13, 164 S. E., 737, except those appearing on the face of the record, which are cognizable ex mero motu, as the lives of the prisoners are involved. S. v. Edney, 202 N. C., 706, 164 S. E., 23; S. v. Goldston, 201 N. C., 89, 158 S. E., 926; S. v. Taylor, 194 N. C., 738, 140 S. E., 728; S. v. Ward, 180 N. C., 693, 104 S. E., 531. No error appears on the record except in the judgment. The cause, therefore, will be remanded for lawful sentences, as was done in S. v. Hester, supra. It is observed that the first name of the defendant Williams is designated “Gernie” in the indictment, while throughout the trial he is spoken of as “Germie,” and in the judgment he is styled “Germie Williams.” Perhaps a plain case of idem sonans (S. v. Whitley, 208 N. C., 661; 8. v. Donnell, 202 N. C., 782, 164 S. E., 352; S. v. Chambers, 180 N. C., 705, 104 S. E., 670; S. v. Drakeford, 162 N. C., 667, 78 S. E., 308; S. v. Collins, 115 N. C., 716, 20 S. E., 452; S. v. Hare, 95 N. C., 682; S. v. Lane, 80 N. C., 407; S. v. Patterson, 24 N. C., 346; 14 R. C. L., 207; 15 R. C. L., 600), but as the cause is to be remanded for proper judgments, this discrepancy will no doubt be eliminated, if deemed material. Remanded.