State v. Jacobs

• Decision Date: 05 April 1983
• Docket Number: No. 825SC910,825SC910
• Citation: State v. Jacobs, 61 N.C.App. 610, 301 S.E.2d 429 (N.C. App. 1983)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James J. JACOBS.

Page 429

301 S.E.2d 429

61 N.C.App. 610

STATE of North Carolina v.James J. JACOBS.

No. 825SC910.

Court of Appeals of North Carolina.

April 5, 1983.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Floyd M. Lewis, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Malcolm R. Hunter, Jr., Raleigh, for defendant, appellant.

HEDRICK, Judge.

Defendant first contends that judgment should be arrested because an assault with his fists does not satisfy the "deadly weapon" element of the indictment.A deadly weapon is "any article, instrument or substance which is likely to produce death or great bodily harm."State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725(1981)(citations omitted).The defendant, a thirty-nine year old male who weighed two hundred ten pounds, hit the victim, a sixty year old woman, in the head and stomach.Brain hemorrhages and other injuries resulted from the beating, causing the victim to be unable to care for herself.The defendant's fists could have been a deadly weapon given the manner in which they were used and the relative size and condition of the parties.SeeState v. Joyner, 295 N.C. 55, 243 S.E.2d 367(1978);State v. Archbell, 139 N.C. 537, 51 S.E. 801(1905).

Since defendant's fists could have been a deadly weapon in the circumstances of this assault, the indictment was sufficient.The indictment specifically stated that defendant used his fists as a deadly weapon and gave facts demonstrating their deadly character.The Supreme Court of North Carolina in State v. Palmer, 293 N.C. 633, 639-640, 239 S.E.2d 406, 411(1977) has noted that,

it is sufficient for indictments or warrants seeking to charge a crime in which one of the elements is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly that the weapon used was a 'deadly weapon' or to allege such facts as would necessarily demonstrate the...