State v. Williams

222 S.E.2d 720 (1976)

STATE of North Carolina v. Moses WILLIAMS.

No. 7514SC861.

Court of Appeals of North Carolina.

March 17, 1976.

Certiorari Denied May 3, 1976.

*721 Atty. Gen. Rufus L. Edmisten by Associate Atty. Claudette Hardaway, Raleigh, for the State.

Kenneth B. Spaulding, Durham, for defendant-appellant.

Certiorari Denied by Supreme Court May 3, 1976.

BRITT, Judge.

Defendant's two assignments of error relate to the court's instructions to the jury. In his first assignment, he contends that the court erred in defining serious injury as follows: "A serious injury is any physical injury that causes great pain and suffering."

We note that the challenged instruction is the same as that recommended by the N. C. Pattern Jury Instructions for Criminal Cases and that State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964), and State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962), are cited as authority for these instructions. While our study of the opinions in Ferguson and Jones leads us to conclude that the instruction does not find explicit support in either of those cases, it finds implicit support in them.

In Jones, we find: ". . . The term `inflicts serious injury' means physical or bodily injury resulting from an assault with a deadly weapon with intent to kill. The injury must be serious but it must fall short of causing death. Further definition seems neither wise nor desirable. Whether such serious injury has been inflicted must be determined according to the particular facts of each case". 258 N.C. at 91, 128 S.E.2d at 3 (1962).

The reference to "with intent to kill" in the quoted statement must be considered in the context of the statute as written at that time. The felony now codified as G.S. 14-32(b) was created by Chapter 602 of the 1969 Session Laws and we think "serious injury" under G.S. 14-32(b) would be the same as under G.S. 14-32(a). Therefore, when the statement quoted from Jones is scrutinized, it says that serious injury is "physical or bodily injury", that the injury must be serious but fall short of death, and that "[f]urther definition seems neither wise or desirable".

In State v. Marshall, 5 N.C.App. 476, 168 S.E.2d 487 (1969), this court found no error in the following instruction on serious injury: "Fourth, inflicting serious injury. As to this, members of the jury, this means physical or bodily injury and this I feel needs no further definition." . . .

We feel that the instruction challenged here imposes a greater degree of injury than that required by Jones and that approved in Marshall; therefore, we hold the trial court did not err in giving the instruction.

We have considered defendant's other assignment of error but find it too to be without merit.

No error.

HEDRICK and MARTIN, JJ., concur.