State v. Cox

181 S.E.2d 205 (1971)

11 N.C. App. 377

STATE of North Carolina v. Jesse David COX.

No. 7129SC333.

Court of Appeals of North Carolina.

May 26, 1971.

*206 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. William F. Briley, for the State.

W. R. Sheppard, Hendersonville, for defendant.

BROCK, Judge.

Defendant assigns as error that the trial judge failed to submit to the jury the issue of simple assault. Defendant admitted that he cut the prosecuting witness, and the evidence tends to show that the blade of the knife was approximately three inches long. Defendant's contention was that he acted in self-defense when he cut W. C. Hill. The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative *207 factor. State v. Barber, 9 N.C. App. 210, 175 S.E.2d 611. This assignment of error is overruled.

Defendant assigns as error that the trial judge failed to instruct the jury on defendant's right to defend his home and his family. There is no evidence to justify such instructions. Defendant's own testimony was: "I was standing beside the car talking to my wife when he started out of the car with a bottle to hit me when I cut him". This evidence requires an instruction on defendant's right to act in his own self-defense, and such an instruction was given. This assignment of error is overruled.

Defendant assigns as error that the trial judge submitted to the jury the issue of defendant's guilt of assault with a deadly weapon per se inflicting serious injury. G.S. § 14-32(b). It is defendant's argument that a knife with a three-inch blade is not a deadly weapon per se. At defendant's request we ordered the knife (which was received in evidence at trial as State's Exhibit #1) forwarded as an exhibit to this Court.

The offense defined in G.S. § 14-32(b) is a lesser included offense of the offense defined in G.S. § 14-32(a); and, where there is evidence from which the jury could find that the offense defined in G.S. § 14-32(b) had been committed, it is not only proper but is necessary for the trial court to submit the issue. The blade of the knife in evidence in this case is three inches long and the cutting edge thereof is two and three-quarters inches long. When used as a weapon in an assault such a knife, under the case law of this State, constitutes a deadly weapon per se. State v. Parker, 7 N.C.App. 191, 171 S.E.2d 665. The trial judge was correct in submitting an issue of defendant's guilt under G.S. § 14-32(b) to the jury.

The trial judge submitted three issues to the jury: (1) guilty or not guilty of assault with a deadly weapon with intent to kill inflicting serious injury (G.S. § 14-32(a)); (2) guilty or not guilty of assault with a deadly weapon per se inflicting serious injury (G.S. § 14-32(b)); (3) guilty or not guilty of assault with a deadly weapon (G.S. § 14-33(b)(1)). On each of the three issues the trial judge left it to the jury to determine whether the knife was a deadly weapon. As we have already stated, under the case law of this State, a knife with a three-inch blade constitutes a deadly weapon per se when used as a weapon in an assault. State v. Parker, supra. The defendant is in no position to complain that the trial judge placed the burden upon the State to satisfy the jury beyond a reasonable doubt that the knife was a deadly weapon per se.

The remaining assignments of error have been considered and found to be without merit.

Defendant had a fair trial free from prejudicial error.

No Error.

MORRIS and HEDRICK, JJ., concur.