State v. Marshall

168 S.E.2d 487 (1969)

5 N.C. App. 476

STATE of North Carolina v. Lonnie MARSHALL, Jr.

No. 6915SC361.

Court of Appeals of North Carolina.

July 23, 1969.

*488 Robert Morgan, Atty. Gen., by Harry W. McGalliard, Deputy Atty. Gen., for the State.

James R. Farlow, Chapel Hill, for defendant appellant.

*489 BROCK, Judge.

Defendant first argues that the trial court erred in denying defendant's motion to nonsuit the felony charge in Case No. 69-CRS-44 (Weaver indictment) and in submitting the felony charge to the jury on the evidence before it. Defendant contends that the evidence clearly shows lack of a serious injury and lack of intent to kill, both of which are essential elements of the crime of felonious assault. G.S. § 14-32. He says that the testimony of Richard Weaver shows a situation of "no animosity" and that the shot fired did not inflict serious injury because "a wound in the neck dressed and released within a few hours, with no compounding complications is nothing more than a flesh wound." We cannot agree with these contentions. Taken in the light most favorable to the State, we think there is plenary evidence of an assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death. A pistol wound in the neck, close to the spinal cord, resulting in unconsciousness, with the bullet lodging in the neck is sufficient evidence of serious injury, within the meaning of the statute, to submit the question of serious injury to the jury. Whether serious injury has been inflicted must be determined according to the particular facts of each case and is a question the jury must answer under proper instruction. State v. Jones, 258 N.C. 89, 128 S.E.2d 1. As to the sufficiency of evidence of intent to kill, the intent to kill may be inferred or presumed from the act itself. 1 Strong, N.C. Index 2d, Assault and Battery, § 5, p. 298. Here we think the requisite intent can be inferred from the nature of the assault on Weaver, the manner in which it was made and the conduct of the parties under the circumstances. State v. Cauley, 244 N.C. 701, 94 S.E.2d 915. This assignment of error is overruled.

Defendant next argues that the Court erred in its instruction to the jury on the meaning of "serious injury" by stating as follows: "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." Defendant complains that the jury could understand the Court's statement to mean that any physical or bodily injury was serious injury. We find no prejudicial error in the above instruction. A fair and reasonable construction of the judge's charge, when taken as a whole, is that the injury must consist of physical or bodily injury in the first place and, in the second place, the injury must be serious, leaving the question of whether the particular injury was serious for the jury to determine. It is evident that the Court was mindful of our Supreme Court's definition of serious injury in State v. Jones, in which the Court said: "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." (Emphasis added.) State v. Jones, supra, 258 N.C. p. 91, 128 S.E.2d p. 3. This assignment of error is overruled.

We have carefully considered the remainder of defendant's assignments of error which are to the charge of the court and to the denial of various defense motions and we find no prejudicial error.

Affirmed.

CAMPBELL and MORRIS, JJ., concur.