State v. Green.

FuROHes, J.: This is an indictment for a secret assault with a deadly weapon (a gun) with intent to hill, under Chapter 32, Laws 1887. Under instructions from the court the jury found the defendant “guilty as accessory,” and upon this verdict the court pronounced judgment and the defendant appealed. There was evidence tending to show that defendant .and another were together when the assault was made. And the defendant relied upon an alibi, and introduced evidence tending to establish this defense. It is not contended but that the defendant might be convicted as an accessory upon a proper bill of indictment, and evidence to sustain such an indictment. But it is contended that he could not be convicted as accessory under this indictment, charging him as the principal. And-upon investigation of the authorities, we are of the opinion that this is so. State v. Dewer, 65 N. C., 572. If he was present aiding, abetting and encouraging another to do the shooting, he' might have been found guilty as a principal. State v. Chastain, 104 N. C., 900. The Statute of 1891, Ch. 205, does not apply in this case. That act provides “ that upon the trial of any indictment the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or an attempt to commit a lesser degree of the same crime.” That is, that the defendant under this indictment, for a secret assault, might have been con victed of a simple assault, or assault and battery. We have no means of knowing from this indictment and verdict whether the defendant was convicted as accessory before or after the fact. But neither of these offences is *901 the same offence as that charged in the bill of indictment, nor is either one of them a less degree of the same offence as that charged in the bill. There were other matters discussed in the argument before ns that we do not consider and pass upon as they are not likely to arise again upon a new trial. There is. error, and a new trial is awarded the defendant. New Trial.