State v. Buchanan

• Decision Date: 17 December 1975
• Docket Number: No. 7529SC695,7529SC695
• Citation: 28 N.C.App. 163,220 S.E.2d 207
• Parties: STATE of North Carolina v. Thomas Howell BUCHANAN.
• Court: North Carolina Court of Appeals

Page 207

220 S.E.2d 207

28 N.C.App. 163

STATE of North Carolina v. Thomas Howell BUCHANAN.

No. 7529SC695.

Court of Appeals of North Carolina.

Dec. 17, 1975 Certiorari Denied by Supreme Court March 2, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Attorney Wilton E. Ragland, Jr., Raleigh, for the State.

Swain & Leake by Robert S. Swain and Joel Stevenson, Asheville, for defendant-appellant.

HEDRICK, Judge.

Defendant excepted to and assigns as error the following portion of the court's final mandate to the jury:

'Now, members of the jury, in connection with the second issue, you will recall the definitions which the court earlier gave to you on assault with a deadly weapon and so forth. So the court instructs you that if you find from the evidence and beyond a reasonable doubt that the defendant, Thomas Howell Buchanan, on or about this 16th day of October, 1974, did hit the prosecuting witness, Thomas M. Bryant, with this night stick, as alleged in the bill of indictment, and that as a result thereof, the proximate result thereof, the defendant inflicted serious injuries on the person of the said Thomas M. Bryant, not resulting in his death, then you so being satisfied of these elements beyond a reasonable doubt, would return a verdict of guilty of assault with a deadly weapon inflicting serious bodily injury and you would return your verdict into open court in those words, that if 'guilty as to the second issue,' submitted to you.'

Defendant argues that the foregoing instruction is erroneous and prejudicial because it invades the province of the jury to determine whether the nightstick used by the defendant was a 'deadly weapon', and that the judge violated G.S. 1--180 by clearly expressing an opinion that the nighstick was in fact a deadly weapon. The State, citing State v. Smith, 187 N.C. 469, 121 S.E. 737 (1924), and State v. Parker, 7 N.C.App. 191, 171 S.E.2d 665 (1970), argues that since the court could declare the nightstick in question to be a deadly weapon as a matter of law, the instruction complained of was not error.

In State v. Parker, supra, citing State v. Smith, supra, this court held that the trial court did not err in declaring as a matter of law that a steak knife with 'a sharp, sawtooth blade approximately four and one-half inches long with a keen point and a handle approximately four inches long', when used as a knife was a deadly weapon Per se.

In State v. Smith, supra, 187 N.C. at 470, 121 S.E. at 737, our Supreme Court said:

'Any instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. State v. Craton, 28 N.C. (164) 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. State v. Archbell, 139 N.C. 537, 51 S.E. 801; State v. Sinclair, 120 N.C. 603, 27 S.E. 77; State 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...