State v. Mullen
| Decision Date | 15 July 1980 |
| Docket Number | No. 801SC93,801SC93 |
| Citation | 47 N.C.App. 667,267 S.E.2d 564 |
| Parties | STATE of North Carolina v. Walter Carnell MULLEN. |
| Court | North Carolina Court of Appeals |
Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Daniel F. McLawhorn, Raleigh, for the State.
White, Hall, Mullen, Brumsey & Small by G. Elvin Small, III, Elizabeth City, for defendant-appellant.
One of the essential elements of attempted armed robbery under G.S. 14-87(a) is the use of a "dangerous weapon . . . whereby the life of a person is endangered or threatened." In the present case the trial court charged the jury that "nun-chuckas, such as has been described in the evidence that has been used in this case would be a dangerous weapon," and defendant assigns error on the ground that the nun-chuckas were not a dangerous weapon per se.
We are compelled to find that defendant is correct. The State presented evidence that nun-chuckas are two sticks joined by a chain. Spence, the victim, testified that the sticks were 12 inches long and the chain perhaps 12 inches long. Ralph Williamson, an Elizabeth City policeman, testified that nun-chuckas are "eight to ten inch sticks connected by a six inch chain." No evidence was presented as to the weight or circumference of the sticks or chain, and they were not introduced into evidence. Our courts have held that assault with a deadly weapon is a lesser included offense in armed robbery, State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971), so a "deadly" weapon is synonymous with a "dangerous" one, and cases addressing the question of whether a particular weapon was deadly per se are pertinent to the question now before us.
We find a close analogy to the present situation in the case of State v. Buchanan, 28 N.C.App. 163, 220 S.E.2d 207 (1975), cert. denied 289 N.C. 452, 223 S.E.2d 161 (1976). There the defendant was charged with assault with a deadly weapon, a policeman's nightstick, with intent to kill inflicting serious injury. No verbal description of the nightstick was given in the record, nor was the nightstick included as an exhibit on appeal. We awarded the defendant a new trial for the court's error in removing from the jury the question of whether the nightstick was a deadly weapon. Here, as in Buchanan, neither the meager description of the weapon nor the manner of its use is sufficient to permit the court to say as a matter of law that these nun-chuckas were a dangerous weapon within the meaning of the statute. For error...
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State v. Morgan
...ignoring the uncontradicted testimony of the State's witnesses, since no defense evidence was offered."); State v. Mullen, 47 N.C.App. 667, 669, 267 S.E.2d 564, 565 (1980) ("The court should charge on a lesser included offense only when there is evidence of that offense. The contention that......
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State v. Smallwood
...however. By statute, the "dangerous" weapon or means must be one which endangers or threatens life. G.S. 14-87(a); State v. Mullen, 47 N.C.App. 667, 267 S.E.2d 564 (two terms synonymous), disc. rev. denied, 301 N.C. 103, 273 S.E.2d 308 (1980); see G.S. 14-27.2 (rape with "dangerous or deadl......
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State v. Wiggins, 857SC393
...weapon is synonymous with a deadly one, cases resolving whether a particular weapon was deadly per se are relevant. State v. Mullen, 47 N.C.App. 667, 668, 267 S.E.2d 564, 565, disc. rev. denied, 301 N.C. 103, 273 S.E.2d 308 (1980). A dangerous or deadly weapon "is generally defined as any a......
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State v. Mullen
...Hall, Mullen, Brumsey & Small, Elizabeth City, for defendant. Petition by State for discretionary review under G.S. § 7A-31, 47 N.C.App. 667, 267 S.E.2d 564. ...