State v. Plemmons
| Decision Date | 02 March 1949 |
| Docket Number | No. 73.,73. |
| Parties | STATE . v. PLEMMONS. |
| Court | North Carolina Supreme Court |
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Appeal from Superior Court, Buncombe County; J. H. Clement, Judge.
B. R. (Berdine) Plemmons was convicted of assault with a deadly weapon with intent to kill, inflicting serious and permanent injury not resulting in death, and he appeals.
No error.
Criminal prosecution on indictment charging the defendant with an assault with a deadly weapon with intent to kill "and murder, " inflicting serious injury not resulting in death.
The record discloses that the defendant owns the "Star Dust Trail" on Riverside Drive in the City of Asheville, where beer and other drinks are sold. On the night of 25 July, 1948, around the hour of midnight, John B. Bulis and four or five others came to the defendant's place of business in a taxicab. They were all drinking. They began to play a slot machine in the defendant's place of business which was supposed to pay off in tokens. The machine failed to operate properly; whereupon Bulis picked it up, put it under his arm and started out the door with it. The defendant followed him with pistol in hand.
Bulis testified that as he stepped through the door he lost his balance and fell with the slot machine; that the defendant picked up the machine and shot him in the abdomen while he was lying on the ground.
The defendant's evidence was to the effect that Bulis neither fell nor was on the ground when shot. The defendant testified that he followed Bulis into the yardand asked him where he was going with his machine; that as he reached to take the machine, Bulis struck at him with his right fist and threw him off balance causing him to stumble and nearly fall; that as he straightened up Bulis was coming on him with the slot machine in his hand, threatening to strike him in the face with it; whereupon the defendant shot him "right along the watch pocket" to ward off the assault, fearing that his life was in danger.
Verdict: "Guilty of an assault with a deadly weapon with intent to kill, inflicting serious and permanent injury not resulting in death."
Judgment: Imprisonment in the State's Prison for a term of not less than four nor more than six years.
Defendant appeals, assigning errors.
Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes, and Ralph M. Moody, Asst. Attys. Gen., for the State.
Henry C. Fisher and Claude L. Love, both of Asheville, for defendant.
The defendant is charged with an assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death. This is made a felony by G.S. § 14-32.
The use of the words "and murder" following the phrase "with intent to kill" in the bill was surplusage and placed no additional burden on the prosecution. The jury was careful to spell out its verdict and the spelling appears to have followed the language of the statute. State v. Ellison, 230 N.C. 59, 52 S.E.2d 9; State v. Lassiter, 208 N.C. 251, 179 S.E. 891.
The defendant complains that the trial court failed to explain to the jury "what is meant by the term, 'with intent to kill, ' as used in the statute....
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State v. Sparks
...from the defendant, the presiding judge was not required to supply its definition. As stated by Chief Justice Stacy in State v. Plemmons, 230 N.C. 56, 52 S.E.2d 10 (1949): 'The jury could hardly have failed to understand what was meant by the expression 'with intent to kill.' It is self-exp......
- State v. Hayes
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State v. Parks
...to kill inflicting serious injury. Here, however, the trial judge did not attempt to define 'intent to kill.' In State v. Plemmons, 230 N.C. 56, 52 S.E.2d 10 (1949), the trial court did not define the term 'with intent to kill.' Defendant there assigned this as error. In overruling this ass......
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State v. Cauley
...778, 155 S.E. 879; State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5. The words 'with intent to kill' are selfexplanatory. STate v. Plemmons, 230 N.C. 56, 52 S.E.2d 10, 11. An intent to injure does not I agree that the evidence for the State afforded a sufficient basis for a verdict that the m......