State v. Davis
| Decision Date | 18 May 1977 |
| Docket Number | No. 7626SC1009,7626SC1009 |
| Citation | 33 N.C.App. 262,234 S.E.2d 762 |
| Parties | STATE of North Carolina v. Vernon Wayne DAVIS and Willie J. Newsmith, III. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Rufus L. Edmisten by Associate Atty. Jack Cozort, Raleigh, for the State.
Public Defender Michael S. Scofield by Asst. Public Defender Richard D. Boner, Charlotte, for defendant Vernon Wayne Davis.
Peter H. Gerns, Charlotte, for defendant Willie J. Newsmith, III.
In his charge to the jury Judge Falls instructed as to assault with a deadly weapon inflicting serious injury as follows:
(Emphasis added.)
Both defendants contend that the trial judge, by instructing that the victim's skull fracture was a serious injury, violated G.S. 1-180. They argue that the instruction was not only prejudicial but that it also invaded the province of the jury. We disagree.
In making their arguments concerning this assignment of error, defendants cite the case of State v. Whitted, 14 N.C.App. 62, 187 S.E.2d 391 (1972). In that case, a new trial on a charge of assault with a deadly weapon with the intent to kill inflicting serious injury was granted because the trial judge instructed the jury that " . . . you will find that there was serious injury, if you believe the evidence as it all tends to show here, no question about the serious injury . . . ." The case at bar is, however, distinguishable from the Whitted case because there the parties offered contradictory evidence concerning the seriousness of the injury.
The uncontradicted evidence in the instant case shows that the victim was struck in the head; that he was immediately taken to Charlotte Memorial Hospital where he stayed for nine days; that a neurosurgeon had to perform surgery; that the surgeon had to peel back fragments of bone in order to repair the skull; that the victim's head is still indented; and that he sustained surgical bills of $1,080 and hospital bills of $15,000. We hold that where, as in the case at bar, the State's evidence with respect to the injuries is uncontradicted and the injuries could not conceivably be considered anything but serious, then the trial judge may instruct the jury that if they believe the evidence as to the injuries, then they will find that there was serious injury. State v. Springs, N.C.App., 234 S.E.2d 193 (1977). This assignment of error is overruled.
By their next assignment of error, defendants contend that the trial court erred in failing to instruct on the lesser offense of assault with a deadly weapon. Again, we ...
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State v. Hedgepeth, No. 614A87
...389 (1982); State v. Springs, 33 N.C.App. 61, 234 S.E.2d 193, disc. rev. denied, 293 N.C. 163, 236 S.E.2d 707 (1977); State v. Davis, 33 N.C.App. 262, 234 S.E.2d 762 (1977). In Pettiford, the Court of Appeals said "we find support for [this] reasoning in the historical position taken by our......
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State v. Pettiford, 8215SC452
...lesser included offense of assault with a deadly weapon, holding that defendant "inflicted serious bodily injury." In State v. Davis, 33 N.C.App. 262, 234 S.E.2d 762 (1977), 1 the victim was struck in the back of the head, required surgery, was hospitalized for nine days, and had medical an......
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State v. Pugh, 806SC11
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