State v. McKinnon

283 S.E.2d 555 (1981)

STATE of North Carolina v. Cletus Jerome McKINNON.

No. 8125SC442.

Court of Appeals of North Carolina.

November 3, 1981.

*557 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Blackwell M. Brogden, Jr., Raleigh, for the State.

Appellate Defender Project for North Carolina by Malcolm R. Hunter, Jr., Raleigh, for defendant-appellant.

VAUGHN, Judge.

Defendant brings forward three assignments of error. None discloses prejudicial error.

Defendant first argues that having submitted to the jury the question of the alleged deadly character of the knife, the court was then required to charge the jury as to the lesser included offense of assault inflicting serious injury. State v. Whitaker, 29 N.C.App. 602, 225 S.E.2d 129 (1976).

It is well established in North Carolina that when there is some evidence to support a lesser included offense of the one charged, defendant is entitled as a matter of law to have the jury instructed on that lesser offense. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); State v. Williams, 51 N.C.App. 397, 276 S.E.2d 715 (1981). In this cause, however, there is no evidence to support a charge of misdemeanor assault.

A knife may or may not be considered a deadly weapon depending upon the manner in which it is used or the part of the body at which its force is aimed. State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978). The evidence presented shows that defendant purposefully stabbed Bennie McKinnon in the chest. He was not injured by a wild swing of defendant's knife during a scuffle. The actual results caused by the weapon may be considered in determining whether the weapon is deadly. State v. Roper, 39 N.C.App. 256, 249 S.E.2d 870 (1978). Here, there was uncontradicted testimony that defendant's blow caused Bennie McKinnon's lung to collapse.

Where the circumstances of the use of an alleged deadly weapon admit of but one conclusion, the question of the weapon's character is one of law for the court to declare.

"Any instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. S[tate] v. Craton, 28 N.C., p. 179. The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself. S[tate] v. Archbell, 139 N.C. 537 [51 S.E. 801]; S[tate] v. Sinclair, 120 N.C. 603 [27 S.E. 77]; S[tate] v. Norwood, 115 N.C. 789 [20 S.E. 712]. Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly within the foregoing definition is one of law, and the Court must take the responsibility of so declaring. S[tate] v. Sinclair, supra. But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury.... Krchnavy v. State, 43 Neb. 337 [61 N.W. 628]. A pistol or a gun is a deadly weapon (S[tate] v. Benson, 183 N.C. 795 [111 S.E. 869]); and we apprehend a baseball bat should be similarly denominated if viciously used, as under the circumstances of this case."

State v. Smith, 187 N.C. 469, 470, 121 S.E. 737 (1924) (holding that the vicious use of a baseball bat made it a deadly weapon as a matter of law). We conclude the trial court should have held that the pocketknife as used by defendant was a deadly weapon as a matter of law. There was, therefore, no error in the court's failure to submit the lesser offense of misdemeanor assault. State v. Roper, supra.

Defendant next argues that he was entitled to an instruction on self-defense. The right to self-defense is only available to a person who is without fault. *558 If defendant is the aggressor in a fight, he can invoke the defense only if he abandons the fight, withdraws, and gives notice to his adversary. State v. Robinson, 40 N.C.App. 514, 253 S.E.2d 311 (1979). In the present cause, we find no evidence from which a jury might infer that defendant abandoned and withdrew from the confrontation which he unquestionably initiated. Defendant, therefore, was not entitled to a charge on self-defense.

Defendant's final exception is to testimony by Bennie McKinnon that his lung collapsed from the knife wound. Defendant argues the statement was inadmissible hearsay. At trial, the court overruled defense attorney's objection if the witness was speaking from personal knowledge. The burden was on defense attorney to establish on voir dire or cross-examination that the witness was repeating what someone else told him. Defendant did not do so. We must conclude that Bennie McKinnon was testifying of his own knowledge. Such testimony is not hearsay and is properly admitted into evidence.

No error.

HILL and WHICHARD, JJ., concur.