State v. . Davis

22 S.E.2d 274, 222 N.C. 178, 1942 N.C. LEXIS 60

• Court: Supreme Court of North Carolina
• Decided: October 21, 1942
• Status: Published

Opinion

Barnhill, J.

The court below instructed the jury: “If you are satisfied beyond a reasonable doubt that the defendant assaulted Hayes with a hoe, it would be your duty to convict him of an assault with a deadly weapon.” This, in effect, assumes or bolds as a matter of law that a hoe is per se a deadly weapon.

The evidence fails to disclose the weight, size, length or other description of the hoe. Apparently it was not offered in evidence to he viewed either by the judge or the jury. Hence, the charge must be held for error. The question should have been submitted to the jury under proper instructions. S. v. Watkins, 200 N. C., 692, 158 S. E., 393, and cases cited.

Defendant’s evidence indicates that he was relying on his right to defend his wife, as well as himself. He offered more than a scintilla of evidence to support that plea. S. v. Maney, 194 N. C., 34, 138 S. E., 441. The court below inadvertently failed to apply the law of self-defense to this aspect of the testimony. S. v. Anderson, ante, 148.

It is not amiss to call attention to the fact that the bill of indictment is defective in that it alleges that the assault resulted in great damage to the defendant, rather than to the person assaulted. The solicitor may deem it advisable to procure another hill.

For the reasons stated there must be a

New trial.