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STATE v. GREGORY
Summary of Opinion: State v. Bruce Gregory (Supreme Court of North Carolina, filed 13 October 1943)
Factual and Procedural Background
The defendant, Bruce Gregory, was indicted for an assault committed on 8 May 1943, described in the indictment as: an unlawful, wilful and felonious assault upon Will Register with a deadly weapon (a pocket knife), inflicting serious injuries not resulting in death, with intent to kill and murder.
The principal prosecution witness, Will Register, testified that while in an alley he was struck in the throat from behind by a person later identified as the defendant, and was also severely cut in the back. There was testimony that blood spurted from the neck wound, that the neck wound was serious and might have caused death by hemorrhage, and that Register spent eight days in the hospital and ten days in bed at home before recovering.
The defendant testified that he was sitting on nearby steps, that Register insulted and then attacked him with a large bottle, grasped his clothing and struck him, and that defendant drew his pocket knife to “cut himself loose” during the struggle. Defendant testified he acted in self-defense.
The jury returned a verdict: “Guilty of assault with intent to kill.” The trial judge entered judgment that defendant serve not less than three nor more than four years in the State Prison. Defendant moved to set aside the verdict and, alternatively, moved in arrest of judgment on grounds that the indictment was fatally defective in failing to describe the nature and extent of the injury; that the verdict was not responsive to any offense properly charged; and that, at most, he should be punished only for simple assault. He also excepted to the court's refusal to instruct the jury on simple assault. The motions were overruled, and defendant appealed.
Legal Issues Presented
- Whether the trial court erred by refusing to instruct the jury on simple assault (a lesser grade) when the indictment charged assault with a deadly weapon with intent to kill and inflicting serious injury.
- Whether the indictment was fatally defective for failing to more particularly describe the nature and extent of the injury alleged to be "serious," such that a motion in arrest of judgment should be allowed.
- Whether the jury verdict of "assault with intent to kill" is an offense and a punishment consistent with the indictment and applicable statutes (i.e., whether that verdict supported a State Prison sentence as entered).
Arguments of the Parties
Appellant's (Defendant's) Arguments
- The indictment was fatally defective because it failed to describe the nature and extent of the injury alleged to be “serious,” and that defect rendered the verdict vulnerable to a motion in arrest of judgment.
- The verdict was not responsive to any offense of which he could be convicted under the indictment, or, in the alternative, the defendant should be punished only for a simple assault (the highest permissible offense under the record), rather than receive the State Prison sentence imposed.
- The trial judge erred in failing to instruct the jury upon simple assault.
State's (Attorney-General's) Arguments
- The requirement that an indictment more particularly describe the injury is primarily related to jurisdictional concerns under earlier law; under the 1919 statute (Michie's Code, sec. 4214) the elements (including "serious injury") are properly charged by using the statutory language and the particularity urged by appellant is not required.
- The indictment, by following the statutory language, sufficiently informed the defendant of the charge and the court of the offense charged.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court in This Opinion |
|---|---|---|
| S. v. Elmore, 212 N.C. 531, 193 S.E. 713 | Authority that a court is not required to instruct the jury on a lesser grade of offense when there is no evidence of such lesser offense. | Cited to support the holding that the trial court did not err in refusing to instruct on simple assault because the record contained no evidence of simple assault. |
| S. v. Lee, 192 N.C. 225, 134 S.E. 458 | Same principle regarding instruction on lesser offenses when no evidence supports them. | Used with Elmore and other cases as supporting authority for the refusal to instruct on simple assault. |
| S. v. Smith, 201 N.C. 494, 160 S.E. 577 | Same principle regarding lesser-offense instructions (cited with similar cases). | Cited among authorities establishing that no instruction on a lesser offense is required when the record lacks evidence of it. |
| S. v. Ratcliff, 199 N.C. 9, 153 S.E. 605 | Same principle regarding lesser-offense instructions (cited with similar cases). | Cited as part of the line of authority supporting the court's charge ruling. |
| S. v. White, 138 N.C. 704, 51 S.E. 44 | Same principle regarding lesser-offense instructions (cited with similar cases). | Cited with the other cases for the same proposition that the court need not encourage inconsistent verdicts where no evidence supports a lesser offense. |
| S. v. Jones, 218 N.C. 734, 12 S.E.2d 292 | Rule that a verdict is not vulnerable to a motion in arrest of judgment for defects in the indictment unless the indictment wholly fails to charge an offense or omits an essential element. | Cited in stating the general rule governing motions in arrest of judgment and the standards for attacking indictments post-verdict. |
| S. v. Battle, 130 N.C. 655 | Prior holding that failure to describe the nature and extent of the damage may strip an indictment of expressions necessary to raise it out of the grade of simple assault. | Discussed by the court as an authority relied on by appellant; analyzed in light of statutory changes (sec. 4214) and jurisdictional considerations to determine whether Battle's rule requires a more particular description in the indictment under current law. |
| S. v. Bowers, 94 N.C. 910 | Authority bearing on jurisdictional exceptions (concurrent jurisdiction within one mile of courthouse, etc.). | Quoted to show that in Battle jurisdictional facts placed the case within concurrent jurisdiction, and to explain historical jurisdictional context. |
| S. v. Gibson, 221 N.C. 252, 20 S.E.2d 51 | Statement that an indictment is generally sufficient when it charges the offense in the language of the statute. | Cited to support the conclusion that following statutory language in the indictment satisfies sufficiency requirements. |
| S. v. Jackson, 218 N.C. 373, 11 S.E.2d 149 | Same principle: an indictment is sufficient if it charges the offense in statutory language. | Used with Gibson and Abbott to support sufficiency of the statutory-language indictment at issue. |
| S. v. Abbott, 218 N.C. 470, 11 S.E.2d 539 | Same principle regarding sufficiency when the indictment follows the statute's language. | Cited in the same line of authority supporting indictment sufficiency. |
| S. v. George, 93 N.C. 567 | Quoted statement that an indictment which strictly follows the words of the statute is the true and safe rule. | Quoted expressly to reinforce the court's view that following statutory language is generally sufficient for indictment form. |
| S. v. Williams, 210 N.C. 159, 185 S.E. 661 | Identified as a typical exception to the general rule that statutory language suffices in an indictment. | Noted by the court as an example of an exception, but not applied to produce the result urged by appellant in this case. |
| S. v. Goff, 205 N.C. 545, 172 S.E. 407 | Authority that, under certain statutory provisions, a jury may convict of a lesser grade of assault than charged. | Cited to show that under the indictment the jury could properly find a lesser grade of assault, including simple assault. |
| S. v. Hefner, 199 N.C. 778, 155 S.E. 879 | Same as Goff: authority that a jury might find lesser grades of assault under an indictment. | Cited with other cases to illustrate permissible downward findings by a jury under the indictment. |
| S. v. Strickland, 192 N.C. 253, 134 S.E. 850 | Same point regarding jury findings of lesser grades of assault. | Included among precedents showing the jury could find a lesser offense under the indictment. |
| S. v. Boyden, 35 N.C. 505 | Used as authority that assault with intent to kill is an indictable offense at common law. | Cited along with Elmore to support the proposition that assault with intent to kill is an indictable offense and to show the nature (misdemeanor) of that offense for punishment purposes in this record. |
Court's Reasoning and Analysis
The court's analysis proceeded in two main parts: (A) the challenge to the trial court's refusal to instruct on simple assault, and (B) the motion in arrest of judgment attacking the indictment and the sentence.
A. Refusal to Instruct on Simple Assault
The court observed that, although a jury has the statutory privilege to convict of a lesser grade of an offense charged, the trial court is not required to direct the jury to do so when there is no evidence supporting the lesser offense. The court cited several North Carolina decisions (including S. v. Elmore, S. v. Lee, S. v. Smith, S. v. Ratcliff, and S. v. White) for this proposition and concluded that the record contained no evidence of simple assault. Therefore, the defendant's exception to the charge lacked merit.
B. Motion in Arrest of Judgment — Indictment Sufficiency and Sentence
The court articulated the governing standard for motions in arrest: ordinarily a verdict is not vulnerable to arrest of judgment for defects in the indictment unless the indictment wholly fails to charge a cognizable offense or omits an essential element of the offense found by the jury. For other defects, the proper remedy is a pretrial motion to quash or a demand for a bill of particulars.
The defendant argued the indictment was fatally defective because it failed to describe the nature and extent of the "serious" injury. The court examined the statutory framework:
- Michie's Code, sec. 4214 (1919 Act) creates the offense of assault with a deadly weapon with intent to kill resulting in injury and prescribes felony punishment.
- C. S., 4215 is an older statute dealing with punishment for assaults generally and, as limited by provisos and constitutional considerations, historically defined certain jurisdictional boundaries and punishment schedules.
The court reviewed prior decisions, including S. v. Battle, acknowledging that earlier cases required more particular descriptions of injury in indictments under prior law, often for purposes of determining jurisdiction. The court explained that many of those decisions predated the 1919 statute (sec. 4214), which made "serious injury" an element of a statutory felony offense. The court emphasized that indictments should now be liberally construed and that the purposes of an indictment are (1) to define the offense sufficiently to confine investigation and invoke the proper procedure and law, and (2) to put the defendant on reasonable notice to prepare his defense.
Applying those principles, the court held that alleging that the assault "inflicting serious injuries not resulting in death" — i.e., using the statutory language — is sufficient. The factual particulars of the injury are matters for proof at trial rather than a pretrial indictment particularity requirement. The court therefore found the indictment sufficient.
The court then considered whether the jury's verdict — "guilty of assault with intent to kill" — stated an offense for which the jury could be convicted under the indictment and whether the punishment imposed was lawful. The court observed that assault with intent to kill, as recognized at common law and in the cited authorities (S. v. Elmore; S. v. Boyden), is at most a misdemeanor under the statutes cited and not punishable as a felony by imprisonment in the State Prison as the trial judge had attempted to impose. The statutory provision C. S., 4215 prescribes punishment for such misdemeanors (fine or imprisonment, or both, at the court's discretion).
On that basis, the court allowed the motion in arrest of judgment as to the sentence: the felony prison sentence could not stand given that the verdict described at most a misdemeanor punishable under C. S., 4215. The court emphasized, however, that the trial process and the jury verdict itself were valid and unaffected; the remedy was to arrest the improper judgment and remand so that a proper judgment (i.e., punishment consistent with the verdict and applicable statute) could be entered.
Holding and Implications
Holding: The Court allowed the defendant's motion in arrest of judgment and arrested the judgment entered by the trial court. The court directed that the case be remanded to the Johnston County Superior Court so that a proper judgment may be rendered on the verdict in accordance with the opinion.
Core Ruling: The judgment imposing a State Prison term was arrested because the verdict ("guilty of assault with intent to kill") described at most a misdemeanor punishable under C. S., 4215, and thus the prison sentence as entered was not legally supportable.
Implications: The direct consequence is that the judgment imposing a penitentiary sentence was vacated (arrested) and the case remanded for entry of a judgment consistent with the verdict and applicable statutory punishment. The court left intact the validity of the trial and the jury's verdict. The opinion frames the indictment sufficiency rule in favor of liberal construction when statutory language is followed, and it clarifies that sentencing must conform to the legal character of the offense as established by the verdict and governing statutes. The opinion does not announce or claim to create a broader novel precedent beyond these applications; its practical effect is limited to correcting the sentence and remanding for proper judgment consistent with the court's analysis.
Disposition: Error and remanded; motion in arrest of judgment allowed as to sentencing; remand for proper judgment on the verdict.
1. Criminal Law § 53d —
Where there is no evidence of a less degree of the crime charged, the court is not required to instruct the jury that they may convict of a less grade of the same offense.
2. Criminal Law § 56 —
A verdict of a jury is not vulnerable to a motion in arrest of judgment because of defects in the indictment, unless the indictment wholly fails to charge some offense cognizable at law or fails to state some essential and necessary element of the offense of which defendant is found guilty.
3. Same —
An indictment must be liberally construed upon a motion in arrest of judgment for defects therein.
4. Indictment § 7 —
The purpose of an indictment is twofold: first, to make clear the offense charged so that the investigation may be so confined, that proper procedure may be followed and applicable law invoked; second, to put defendant on reasonable notice so that he may make his defense.
5. Indictment § 9 —
As a general rule, an indictment is sufficient when it charges the offense in the language of the statute.
6. Same: Assault and Battery § 8 —
In an indictment, under Michie's Code, sec. 4214, it is not necessary to describe the injury further than in the words of the statute.
7. Assault and Battery §§ 7a, 7c —
Where in a trial of an indictment, under Michie's Code, sec. 4214, defendant is convicted of an assault with intent to kill and judgment rendered that defendant serve not less than three nor more than four years in the State's Prison, there is error, as the offense described in the verdict is at most a misdemeanor punishable by fine and imprisonment, or both, in the discretion of the court as provided by the statute. C. S., 4215.
The defendant was tried at the June Term, 1943, of Johnston Superior Court on a bill of indictment reading as follows:
"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT, That Bruce Gregory, late of the County of Johnston, on the 8th day of May in the year of our Lord one thousand nine hundred and forty three, with force and arms, at and in the County aforesaid, did unlawfully, wilfully and feloniously assault one Will Register with a deadly weapon, to wit, a pocket knife, inflicting serious injuries not resulting in death, with intent to kill and murder the said Will Register, against the form of the statute in such case made and provided and against the peace and dignity of the State."
The principal State's witness, Register — who claims to have been assaulted — testified that on the night of 8 May of that year, being in Benson, he went down an alley between the Peacock Drug Store and Benton Printing Company to attend a call of nature. When he got back of the drug store, intending to turn into the alley behind the drug store, someone "hollered" at him. Not seeing the person and failing to understand what he said, he stopped and tried to determine where the voice came from, saw a man sitting on some steps that ran up the side of the building. He heard the man say that he would "do something" or would "come down there," whereupon he turned around sharply and walked back up the alley. When he reached a point about fifteen feet from Main Street in the alley, someone, whom he later identified as the defendant, ran up behind him and struck him in the throat with a knife, and he felt soreness from the lick and pain. He was walking toward Main Street when struck. Witness thereupon turned around quickly and began to strike his assailant with both fists. He was cut not only in the throat, but severely in the back.
Upon cross-examination, he denied having any bottle in his hand or striking at anybody with a bottle, or putting his hands upon defendant's clothing.
There was evidence to the effect that blood spurted from the wound in the neck both there and in the hospital, that it was serious and might have caused his death by hemorrhage. The wound in the back was severe, but would not have caused death. After eight days in the hospital and ten days in bed at home, the witness recovered.
The defendant Gregory testified that he was sitting on the stairway which ran up from the alley on the side of the drug store building to his apartment over that store; that he had sent his wife out through the alley to get a drink of Coca-Cola; that meantime the prosecuting witness came into the alley to attend to a call of nature, and Gregory asked him to leave, telling him that his wife had gone to the drug store and would be back in about half a minute. Witness went to where Register was and again told him that witness' wife had gone to the drug store and would be back any time, and Register said, "Damn you and your wife both," picked up a large bottle found in the alley and struck witness on the left side of his head, then grabbed his overall bib. Witness asked Register to turn him loose, but he continued to hold witness, striking at him on the back and hips. After vainly endeavoring to disengage himself in the fight, witness testifies that he put his hand in his pocket, brought out his knife and "cut himself loose," but did not cut Register any more after he was turned loose. Witness stated that he fought in self-defense and because he feared that Register would beat him to death, and to keep Register from killing him.
Other testimony is cumulative or corroboratory, and unnecessary to an understanding of the decision.
The case was submitted to the jury, which found as its verdict the following: "Guilty of assault with intent to kill." Upon this verdict judgment was rendered that defendant serve a term of not less than three nor more than four years in the State Prison at Raleigh. Defendant moved to arrest the judgment upon the following grounds: That the indictment was fatally defective in failing to describe the nature and extent of the injury so that its seriousness might be apparent to the court; that the verdict was not responsive to any offense of which he might be convicted under the indictment; and failing his discharge on these grounds, that he should be punished only for a simple assault, that being the highwater mark of the verdict under any possible theory of its validity.
The defendant also excepted to the failure of the judge to instruct the jury upon simple assault.
The motions to set aside the verdict and in arrest of judgment were overruled, and the defendant appealed.
SEAWELL, J.
The exception to the judge's charge needs little discussion. Although the jury might have exercised the privilege given it under pertinent statutes discussed elsewhere, and convicted the defendant of an assault of less grade than that charged, and even of simple assault, the court is not required to encourage such inconsistency where there is no evidence of such minor offense. S. v. Elmore, 212 N.C. 531, 532, 193 S.E. 713; S. v. Lee, 192 N.C. 225, 134 S.E. 458; S. v. Smith, 201 N.C. 494, 160 S.E. 577; S. v. Ratcliff, 199 N.C. 9, 153 S.E. 605; S. v. White, 138 N.C. 704, 51 S.E. 44. There is no evidence of simple assault apparent in the record.
We direct our attention to the motion in arrest of judgment.
It is usually held, and so in this State, that the verdict of the jury is not vulnerable to a motion in arrest of judgment because of defects in the indictment, unless the indictment wholly fails to charge some offense cognizable at law or fails to state some essential and necessary element of the offense of which the defendant is found guilty. 23 C. J. S., Criminal Law, sec. 1533; 15 Am. Jur., Criminal Law, sec. 436; S. v. Jones, 218 N.C. 734, 735, 12 S.E.2d 292. As to other less serious defects, objection must be made by motion to quash the indictment or, in proper cases, a bill of particulars may be demanded. Appellant contends that the failure of the indictment to particularly describe the nature and extent of the injury, charged to be serious, is such a fatal defect.
Chapter 101, Public Laws of 1919 (Michie's Code of 1939, sec. 4214), creates a statutory offense in which several elements theretofore appearing merely as aggravating circumstances were combined as essential elements of the crime denounced. Said section reads as follows:
"4214. ASSAULT WITH DEADLY WEAPONS WITH INTENT TO KILL RESULTING IN INJURY. — Any person who assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony and shall be punished by imprisonment in the state prison or be worked on the county roads for a period not less than four months nor more than ten years."
Long prior to the enactment of this statute, the Legislature, in an act (C. S., 4215), which, in its main features, dates back to the early seventies, had dealt with the general subject of assault — including assault as known at the common law — and had attempted to lay down a schedule of punishments according to the aggravation of the offense, and at the same time, by the first proviso of this statute, taken in connection with Art. IV, sec. 27, of the Constitution, carved out of the general jurisdiction of assaults given the courts an original and exclusive jurisdiction in the courts of justice of the peace, where no deadly weapon had been used and no serious injury inflicted. Pertinent parts of that section read as follows:
"4215. PUNISHMENT FOR ASSAULT. — In all cases of an assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court: Provided, that where no deadly weapon has been used and no serious damage done, the punishment in assaults, assaults and batteries, and affrays shall not exceed a fine of fifty dollars or imprisonment for thirty days; but this proviso shall not apply to cases of assault with intent to kill," etc.
In support of his contention that the indictment is fatally defective in its failure to more particularly describe the nature and extent of the injury, appellant cites S. v. Battle, 130 N.C. 655, and also relies upon the cases collected and cited in that opinion. Analyzing these cases, all of which were decided prior to the enactment of 4214, supra, the Attorney-General contends that the requirement with respect to a fuller description of the injury is wholly referable to the necessity of determining the jurisdiction under the then existing condition of the law. It is pointed out that what constitutes a serious injury, when the facts are determined, is a matter of law; and the description of the injury afforded a convenient method by which the court might in limine determine its jurisdiction without entering upon a fruitless investigation only to find that it was without jurisdiction. Unquestionably, some of the decided cases deal solely with the subject of jurisdiction, and may have the connotation contended for by the Attorney-General.
However, there was no question of jurisdiction involved in S. v. Battle, supra, since, although the offense might have been initially charged as a simple assault, it was committed within one mile of the courthouse, and during the court term, and, therefore, by an exception not noted above, was within the concurrent jurisdiction of both the Superior and inferior courts. Code, section 892; S. v. Bowers, 94 N.C. 910. In this case the failure to describe the nature and extent of the damage done was held to strip the indictment of such qualifying expressions as were necessary to raise it out of the grade of a simple assault, and the case was remanded for punishment accordingly.
Where the Superior Court takes cognizance of an assault, except where concurrent jurisdiction has been given it of simple assault under certain conditions which do not here appear, it is, of course, necessary that the bill of indictment sufficiently charge an offense within the original jurisdiction of the higher court; and if, upon inspection, it does not charge such an offense, the jurisdiction must fail. These matters frequently came up for consideration by the Court under the statute cited — 4215 — and form the basis of much discussion in the opinions collected in S. v. Battle, supra. We think, however, the requirement that the nature and extent of the injury should be more specifically described was as much due to the more meticulous standards of the common law, under which the concepts and definitions of offenses took form largely through the experience of administration and without the aid of definitive statutes; and, as a means of "playing safe," indictments were viewed with great, and often unnecessary, strictness. Now, under a motion for arrest of judgment for a defect in the indictment, it must be liberally construed. 15 Am. Jur., Criminal Law, s. 435, and cited cases.
The purpose of an indictment is at least twofold: First, to make clear the offense charged so that the investigation may be confined to that offense, that proper procedure may be followed, and applicable law invoked; second, to put the defendant on reasonable notice so as to enable him to make his defense. When these purposes are served, the functions of the indictment are not so impaired by the omission of subordinate details — in this case a more particular description of the injury — as to necessitate an abruption of the judicial investigation in which, if it is allowed to proceed, the questioned condition may be made clear and the rights of the accused protected by the application of legal standards.
As we have stated, the effect of the 1919 Act — section 4214, Michie's, Code, supra — is to create a separate and distinct statutory offense in which are incorporated as essentials to the crime a number of circumstances theretofore considered merely as an aggravation of the assault — amongst them the fact of serious injury. In our opinion, the statement in the indictment that the assault inflicted serious injury is sufficient without further elaboration, and the fact becomes a matter of proof upon the trial. Except as a convenience in determining the jurisdiction of the court in the first instance, it is questionable whether the insistence that so significant an expression as "serious injury" be further explained served any useful purpose, even at common law. In the present instance, we feel that the more reasonable rules pertaining to indictments for statutory crimes should be pursued.
As a general rule, an indictment is sufficient when it charges the offense in the language of the statute. S. v. Gibson, 221 N.C. 252, 20 S.E.2d 51; S. v. Jackson, 218 N.C. 373, 375, 11 S.E.2d 149; S. v. Abbott, 218 N.C. 470, 476, 11 S.E.2d 539.
"The indictment strictly follows the words of the statute, and that is laid down in all the authorities as the true and safe rule. It is true there are some few exceptions, but we do not think they embrace this case." S. v. George, 93 N.C. 567, 570.
For a typical exception, see S. v. Williams, 210 N.C. 159, 185 S.E. 661.
We hold that the indictment in this respect is sufficient.
The jury found the defendant guilty of an assault with intent to kill. Appellant's challenge to this verdict presents the question whether it states an offense of which the accused could be found guilty under the indictment without superadding a qualification that would make it unacceptable in law.
As above stated, under the indictment the jury was authorized to find the defendant guilty of a less grade of assault, or even of a simple assault. C. S., 4639; C. S., 4640; S. v. Goff, 205 N.C. 545, 551, 172 S.E. 407; S. v. Hefner, 199 N.C. 778, 155 S.E. 879; S. v. Strickland, 192 N.C. 253, 134 S.E. 850. C. S., 4639, relative to assaults, is especially applicable.
Assault with intent to kill is an indictable offense at common law; S. v. Elmore, supra; S. v. Boyden, 35 N.C. 505; which, it is said, is recognized everywhere. 26 Am. Jur., p. 577, sec. 597. Commonly, no distinction is made between the expressions "intent to murder" and "intent to kill." Designated in ipsissimis verbis it is by the terms of the second proviso of C. S., 4215 expressly excepted from the punishment assigned to simple assault and to the jurisdiction into which it falls. It is within the category of offenses of which the jury might find, and did find, defendant guilty in the downward progress from the greater to the lesser offense. Thus far we find no legal difficulty upon the record.
But the offense described in the verdict is at most a misdemeanor; S. v. Boyden, supra; S. v. Elmore, supra; and not punishable as a felony by imprisonment in the State's Prison, as here attempted. C. S., 4171. The effect of the verdict is to find the defendant guilty of a misdemeanor, punishable by fine or imprisonment, or both, at the discretion of the court, as provided in the statute — C. S., 4215.
For these reasons, appellant's motion in arrest of judgment is allowed, and the judgment is arrested. But the validity of the trial and verdict is unaffected, and the case is remanded to Johnston County Superior Court, where a proper judgment will be rendered on the verdict in accordance with this opinion.
Error and remanded.
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