SMITH, C. J., dissenting.
MERRIMON, J.
We cannot hesitate to concur with the court below in deciding that serious damage was done to the prosecuting witness by the ferocious and unprovoked beating inflicted upon him by the defendant, as charged in the indictment and proved on the trial. The injury was not simply painful and humiliating — it disfigured the face, seriously bruised the eyes — closed one of them entirely for days, and probably permanently impaired the sight. It seems to us that there can be no question that serious damage was done. The justice of the peace, therefore, had no jurisdiction of the offense, and any judgment he undertook to render in a criminal action before him on that account was a nullity.
The plea of autre fois convict was properly not sustained. S. v. Huntley, 91 N.C. 617.
The criminal court had jurisdiction of the simple assault and battery charged in the indictment, if more than six months elapsed next after the time when the offense was perpetrated, and before the beginning of the present action; and this is none the less so because the justice of the peace did not have jurisdiction. The jurisdiction of the criminal court was presumed, and the burden was on the defendant to prove, as matter of defense, that less than six months so elapsed, in order to defeat it. As no such defense was made, and no question in that respect was raised on the trial, it must be inferred that the court had jurisdiction of the offense, as charged. The presumption in favor of it was not rebutted. S. v. Earnest, post, 740, and cases there (678) cited.
It is true that the defendant might have been indicted — and it seems that regularly he ought to have been — for an assault and battery in which serious damage was done. The present indictment is not sufficient for that purpose, because it does not charge that serious damage was done, its nature and extent, but it charges the simple offense; and the court having jurisdiction it could, as it did do, give an appropriate judgment upon the verdict of guilty. One advantage of charging the offense as one in which serious damage was done is, that the jurisdiction cannot be ousted by showing that six months had not elapsed, as above indicated.
It may seem somewhat singular that the justice of the peace had not jurisdiction of the offense as a simple assault and battery, and the criminal court had. The reason and explanation of such seeming inconsistency is, that the criminal court has the larger jurisdiction — it had jurisdiction of the simple offense as indicated, and as well and exclusively of the offense accompanied and rendered more aggravated by serious damage.
The error assigned as to the rendition of the verdict of the jury cannot be sustained. Before the court received and entered it, at once it was suggested there was mistake and misapprehension of the jury, of which they became presently conscious upon explanation from the court; they returned for further consideration of their verdict, corrected the error, and in a few minutes rendered a verdict of guilty, without hesitation. It would savor of trifling to allow so small an irregularity to delay, perhaps defeat, justice, especially in a case in which plainly no injustice is done the party complaining.
The rights of the accused must be protected by every safeguard, but this does not imply that he is entitled to have substantial advantage — opportunity to defeat the ends of justice — arising from slight immaterial irregularities that work no injustice to him. S. v. (679) Bishop, 73 N.C. 44.
There is no error. Let this opinion be certified to the criminal court according to law.
Affirmed.