State v. . Harrison

34 S.E.2d 1, 225 N.C. 234, 1945 N.C. LEXIS 289

• Court: Supreme Court of North Carolina
• Decided: May 23, 1945
• Status: Published

Opinion

Schenck, J.

Tbe court charged tbe jury, inter alia: “Second, it (tbe assault) must be with a deadly weapon, and tbe Court instructs you tbat an ice pick such as described would be a deadly weapon, as a matter of law; . . .” This excerpt from tbe charge is made tbe basis for an exceptive assignment of error, and we are constrained to bold tbat such assignment must be sustained.

Barnhill, J., in S. v. Davis, 222 N. C., 178, 22 S. E. (2d), 274, writes for tbe Court tbat a charge to tbe effect tbat an assault with a hoe would be an assault with a deadly weapon was in error, since such a charge assumes or bolds as a matter of law tbat a boe is per se a deadly weapon.

Tbe Davis case, supra, was similar to tbe instant case in many ways, particularly in tbat tbe evidence in both cases failed to disclose tbe weight, size, length or other description of tbe implement alleged, and in neither case was produced to be viewed by either judge or jury. Tbe question as to whether tbe implement alleged was a deadly weapon should have been submitted to tbe jury under proper instructions. S. v. Watkins, 200 N. C., 692, 158 S. E., 393, and cases there cited.

It may not be amiss to call attention to tbe fact tbat tbe deadly weapon in tbe bill of indictment is simply designated as “a certain ice pick” without further description, and tbat it might be an act of proper precaution to procure another bill of indictment containing a description of the implement alleged to have been used, such as its weight, size, and material out of which made.

For the reasons stated there must be a

New trial.