State v. Roper

Court of Appeals of North Carolina

State v. Roper

249 S.E.2d 870, 39 N.C. App. 256, 1978 N.C. App. LEXIS 2373

CourtCourt of Appeals of North Carolina

DecidedDecember 19, 1978

Docket7829SC774

StatusPublished

Cited by13 cases

This text of 249 S.E.2d 870 (State v. Roper) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Roper, 249 S.E.2d 870, 39 N.C. App. 256, 1978 N.C. App. LEXIS 2373 (N.C. Ct. App. 1978).

Pincite

Opinion

ERWIN, Judge.

Defendant’s sole assignment of error is that the trial judge failed to charge the jury on the lesser included offense of assault inflicting serious injury. He argues that whether the knife used here was a deadly weapon should have been a jury question. We do not agree.

The description of the knife in this case was given by the victim: “a keen bladed knife or slick bladed knife” and “[defendant] cut me with a pocket knife.” The State argues that this is sufficient to require the court to find that the knife was a deadly weapon per se.

Whether a weapon is deadly is generally a decision for the court, State v. West, 51 N.C. 505 (1859), and “[a]n instrument which is likely to produce death or great bodily harm under the circumstances of its use is properly denominated a deadly' weapon.” State v. Joyner, 295 N.C. 55, 64, 243 S.E. 2d 367, 373 (1978). We believe it is clear that a “keen bladed pocketknife” used under the circumstances here, that is, slapped across the victim’s throat, is “likely to produce great bodily harm.” “An instru *258 ment . . . may be deadly or not, according to the mode of using it. . . State v. West, supra at 509. The actual effects produced by the weapon may also be considered in determining whether it is deadly. State v. West, supra. Here, the uncontradicted testimony is that the injury was an extremely serious one.

We find that it was the proper function of the trial court to determine that this knife was a deadly weapon per se. As a result, there was no error in the judge’s failure to submit the lesser included offense of assault inflicting serious injury. The trial court need not submit a lesser included offense where there is no evidence to support such a verdict. State v. Black, 21 N.C. App. 640, 205 S.E. 2d 154, aff’d, 286 N.C. 191, 209 S.E. 2d 458 (1974).

No error.

Judges Parker and Hedrick concur.

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ERWIN, Judge.

Defendant’s sole assignment of error is that the trial judge failed to charge the jury on the lesser included offense of assault inflicting serious injury. He argues that whether the knife used here was a deadly weapon should have been a jury question. We do not agree.

The description of the knife in this case was given by the victim: “a keen bladed knife or slick bladed knife” and “[defendant] cut me with a pocket knife.” The State argues that this is sufficient to require the court to find that the knife was a deadly weapon per se.

Whether a weapon is deadly is generally a decision for the court, State v. West, 51 N.C. 505 (1859), and “[a]n instrument which is likely to produce death or great bodily harm under the circumstances of its use is properly denominated a deadly' weapon.” State v. Joyner, 295 N.C. 55, 64, 243 S.E. 2d 367, 373 (1978). We believe it is clear that a “keen bladed pocketknife” used under the circumstances here, that is, slapped across the victim’s throat, is “likely to produce great bodily harm.” “An instru *258 ment . . . may be deadly or not, according to the mode of using it. . . State v. West, supra at 509. The actual effects produced by the weapon may also be considered in determining whether it is deadly. State v. West, supra. Here, the uncontradicted testimony is that the injury was an extremely serious one.

We find that it was the proper function of the trial court to determine that this knife was a deadly weapon per se. As a result, there was no error in the judge’s failure to submit the lesser included offense of assault inflicting serious injury. The trial court need not submit a lesser included offense where there is no evidence to support such a verdict. State v. Black, 21 N.C. App. 640, 205 S.E. 2d 154, aff’d, 286 N.C. 191, 209 S.E. 2d 458 (1974).

No error.

Judges Parker and Hedrick concur.

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Bluebook (online)

249 S.E.2d 870, 39 N.C. App. 256, 1978 N.C. App. LEXIS 2373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-roper-ncctapp-1978.

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