State v. . High

Pee CueiaM. While tbe defendant in tbe case on appeal makes twelve separate assignments of error, nine of which are directed to alleged errors in tbe charge, and tbe other three of which are directed to tbe refusal of tbe court to set aside tbe verdict and to grant a new trial, be does not bring forward any one of the assignments in bis brief. He merely discusses bis contention that tbe colloquy between tbe jury and tbe court, when the jury returned to tbe courtroom for further instructions, indicates that tbe jury was confused by tbe charge and rendered a compromise verdict, and bis further contention that a verdict of guilty of an assault with a deadly weapon was not permissible under tbe bill of indictment and tbe theory upon which tbe case was tried. Tbe exceptions to the charge are without merit. Tbe court properly instructed tbe jury as to tbe lesser offenses embraced in tbe bill of indictment. Tbe language of tbe statute and of tbe bill makes an assault with a deadly weapon an essential element of tbe major offense. It was, therefore, permissible for tbe jury to return tbe verdict which appears of record as a lesser offense of tbe crime charged. While it is true that *246 tbe evidence of the State, if accepted and believed by the jury, warranted a verdict of guilty of the offense charged, this did not preclude a verdict upon a lesser offense and the defendant cannot complain that the jury did not accept the State’s evidence in full. Bartholomew v. Parrish, 186 N. C., 81, 118 S. E., 899, relied on by the defendant, is not in point. There the jury returned a verdict which in no aspect of the case was supported by evidence, and it expressly stated in its verdict that it was a compromise. Here the verdict is supported by evidence and the defendant was adjudged guilty of a crime which is a lesser offense of the felony charged. The trial involved largely an issue of fact. The jury rejected the defendant’s evidence tending to show an alibi and accepted the evidence tending to identify the defendant as one of the assailants. As no prejudicial or harmful error is pointed out in the brief and no error appears in the record or in the charge of the court, the judgment below must be Affirmed.