State v. Beal

• Decision Date: 22 December 1915
• Docket Number: 580.
• Citation: 87 S.E. 416,170 N.C. 764
• Parties: STATE v. BEAL.
• Court: North Carolina Supreme Court

87 S.E. 416

170 N.C. 764

STATE v. BEAL.

No. 580.

Supreme Court of North Carolina

December 22, 1915

Appeal from Superior Court, Macon County; Cline, Judge.

Bob Beal was convicted of assault with a deadly weapon, and he appeals. New trial.

The defendant was indicted for an assault with a deadly weapon to wit, a rock weighing about three pounds. The evidence tends to show that a warrant had been issued and delivered to an officer for the arrest of Harworth Beal, a brother of the defendant; that on the night of the alleged assault the officer saw the party for whom he had the warrant in a tent of some kind in the town of Highlands. The officer had carried the warrant with him for the purpose of making the arrest, but, at that time he did not have it with him, having left it in his home, about a half mile away. Under these circumstances, he arrested Harworth Beal, who made no resistance of any kind, but went quietly with the officer. The defendant followed, and when the officer, with his prisoner, had gone about 100 yards, the defendant asked the officer to show his warrant, and, upon his failure to do so the defendant immediately struck the officer with the rock as large as the officer's fist, on the head and knocked him down, and "addled" him.

In a prosecution for assault with a deadly weapon, where the weapon was deadly per se, and the court failed so to instruct the jury, the latter bringing in a verdict of guilty, the error was cured.

J. Frank Ray, of Franklin, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

WALKER J. (after stating the facts as above).

The defendant assigned three errors. The court failed to instruct the jury, as requested, that the defendant had the right to interfere and demand the production of the warrant and, this being refused, to knock the officer down with the rock in order to rescue his brother, but in this we see no error, if the jury find the facts to be as the witness stated them. Justice Hoke said, in State v. Hill, 141 N.C. 769, 771, 53 S.E. 311:

"It is true, as a general rule, or under ordinary conditions, that the law does not justify or excuse the use of a deadly weapon to repel a simple assault. This principle does not apply, however, where from the testimony it may be inferred that the use of such weapon was or appeared to be reasonably necessary to save the person assaulted from great bodily harm, such person having been in no default in bringing on or unlawfully entering into the difficulty"--citing State v. Matthews, 78 N.C. 523.

Whether a weapon is deadly, does not depend so much upon the result of its use, which may be considered, as upon its size and character, the manner of its use, the size and strength of the person using it, and the person upon whom it is used; and, perhaps, other circumstances tending to throw light upon the question, all of which must be regarded by the court in determining whether or no the particular weapon is deadly. There are some instruments which are deadly per se, such as a gun, pistol, large knife, bar of iron, a club, or bludgeon. A heavy oaken staff has been declared to be so. State v. Phillips, 104 N.C. 786, 10 S.E. 463; State v. Sinclair, 120 N.C. 603, 27 S.E. 77.

The character of the weapon, as being deadly or not, does not necessarily depend upon the fact whether or no death actually ensues from its use in the particular case; for a weapon known to be deadly, and so considered by the law, may not produce that result when used in a given case, while one not deadly per se may cause death by the manner of its use. So that all the facts and circumstances should be examined by the court in passing upon the question. Justice Avery, in State v. Phillips, supra, when referring to State v. Porter, 101 N.C. 713, 7 S.E. 902, quotes therefrom:

"The instrument, while called a deadly weapon, is designated simply as a stick, with no description of its size, weight, or other qualities, or proportions, from which it can be seen to be a dangerous or deadly implement, calculated, in its use, to put in peril his life or inflict great physical injury upon the assailed."

And again he quotes from Justice Ruffin in State v. West, 51 N.C. 505:

"Whether an instrument or weapon be a deadly one is, at least generally speaking, for the decision of the court, because it is a matter of reason that it is or not likely to do great bodily harm, which determines its character in this respect. State v. Craton, 28 N.C. 164."

A deadly weapon is defined to be one, which, if not of the class mentioned as so per se would likely cause death or great bodily harm, considering the manner and circumstances of its use. In the case last cited it is said (120 N.C. at page 605, 27 S.E. 78):

"As to whether an instrument used in an assault and battery is a deadly weapon or not, is generally a question of law. State v. Huntley, 91 N.C. 617; State v. West, 51 N.C. 505; State v. Craton, 28 N.C. 164; State v. Collins, 30 N.C. 407. This question has been submitted to the jury, in a few cases, where the matter was left in doubt by conflicting evidence as to the size of the weapon used and the manner in which it was used, and such submissions to the jury have been approved by this court."

But we need not decide as to whether or no this rock was per se deadly, as the court submitted the question to the jury and they found that it was under an instruction directing them to consider the matter of its use and the other circumstances attending the assault with it and relevant to the question as was suggested should be done in State v. Archbell, 139 N.C. 537, 51 S.E. 801. "Where the deadly character of the weapon is to be determined by the relative size and condition of the parties and the manner in which it is used," the question is for the jury. State v. Archbell, supra, citing State v. Huntley, 91 N.C. 621. See, also, State v. Norwood, 115 N.C. 789, 20 S.E. 712, 44 Am. St. Rep. 498. If it is a deadly weapon per se, and the court failed so to instruct the jury, the latter corrected the error by the verdict. If its character as being deadly or not, depended upon the facts and circumstances, it became a question for the jury with proper instructions from the court. The...