State v. Ross

229 S.E.2d 218 (1976)

STATE of North Carolina v. Kenneth Eugene ROSS.

No. 769SC458.

Court of Appeals of North Carolina.

November 3, 1976.

*219 Atty. Gen. Rufus L. Edmisten by Associate Atty. Jerry B. Fruitt, Raleigh, for the State.

Zollicoffer & Zollicoffer by John H. Zollicoffer, Jr., Henderson, for defendant-appellant.

BRITT, Judge.

While defendant argues eleven assignments of error we find only two that we think warrant discussion.

First, he assigns as error the trial court's jury instruction that a shotgun is a deadly weapon. We find no merit in the assignment.

Defendant argues that no evidence was presented tending to show that the shotgun which he allegedly pointed at Hale was loaded and that a gun is not a deadly weapon per se unless it is loaded. This argument is not persuasive. Over a period of many years, the appellate courts of this State have held that a gun or pistol is a deadly weapon per se and defendant does not cite, and our research has not revealed, any case which supports defendant's argument.

In State v. Atkinson, 141 N.C. 734, 53 S.E. 228 (1906), the defendant was tried on an indictment charging him with assault with a deadly weapon, a pistol. The trial court charged the jury that if the State had satisfied them beyond a reasonable doubt that the defendant pointed a pistol at the prosecuting witness, whether the pistol was loaded or not, it would be an assault and to find the defendant guilty. The Supreme Court found no error in the instruction.

In State v. Smith, 187 N.C. 469, 121 S.E. 737 (1924), in an opinion by Justice (later Chief Justice) Stacy, the court stated that a pistol or a gun is a deadly weapon and did not limit the statement to a loaded gun or pistol.

In State v. Powell, 238 N.C. 527, 531, 78 S.E.2d 248, 251 (1953), opinion by Justice (later Chief Justice) Parker, the court declared without qualification that "[a] pistol is a deadly weapon per se".

In State v. Reives, 29 N.C.App. 11, 222 S.E.2d 727, cert. denied, 289 N.C. 728, 224 S.E.2d 675 (1976), this court declared without qualification that a pistol is a deadly weapon per se.

We hold that the trial court did not err in giving the challenged instructions.

Defendant assigns as error the judgment entered by the trial court. He contends that the court erred in sentencing him to a fixed term when he was a "committed youthful offender". We find no merit in this assignment.

The judgment provides that defendant be imprisoned for the term of one year "in the custody of the Secretary of Corrections as a committed youthful offender under Article 3A Chapter 148 of the North Carolina General Statutes". While the judgment does not utilize the word "maximum" or the words "not more than", we think it is clear that one year is the longest period of time that defendant can be incarcerated pursuant to the judgment. By indicating that it is being entered pursuant to Article 3A, Chapter 148 of the General Statutes, the options of conditional release and unconditional discharge by the parole commission are adequately provided for.

Although we do not discuss them here, we have carefully considered the other assignments of error brought forward and argued in defendant's brief and find that they too are without merit. We conclude that he received a fair trial, free from prejudicial error, and that a valid judgment was imposed.

No error.

PARKER and CLARK, JJ., concur.