State v. Smith

• Decision Date: 26 March 1924
• Docket Number: 278.
• Parties: STATE v. SMITH.
• Court: North Carolina Supreme Court

121 S.E. 737

187 N.C. 469

STATE v. SMITH.

No. 278.

Supreme Court of North Carolina

March 26, 1924

Appeal from Superior Court, Pender County; Sinclair, Judge.

Ramp Smith was convicted of manslaughter, and he appeals. Affirmed.

Criminal prosecution tried upon an indictment charging the defendant with murder in the second degree. From a verdict of manslaughter, and judgment pronounced thereon, the defendant appeals, assigning errors.

Where an alleged deadly weapon and the manner of its use are of such a character as to admit of but one conclusion, the question as to whether or not it is deadly is one of law but, where it may or may not be likely to produce fatal results dependent on the manner of its use or the part of the body at which it is directed, the question of its alleged deadly character is one of fact for the jury.

H McClammy and Emmett H. Bellamy, both of Wilmington, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY J.

The defendant killed one J. O. Singleton by striking him on the head with a baseball bat. The two men had been engaged in a fight, and the defendant contended that he slew the deceased in his own proper self-defense. The jury convicted the defendant of manslaughter, which is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Baldwin, 152 N.C. 822, 68 S.E. 148.

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. 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, 44 Am. St. Rep. 498.

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 one of law, and the court must take the responsibility of so declaring. State v. Sinclair, supra. But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury. State v. West, 51 N.C. 505; Krchnavy v. State, 43 Neb. 337, 61 N.W. 628. A pistol, or a gun, is a deadly weapon (State v. Benson, 183 N.C. 795, 111 S.E. 869), and we apprehend a baseball bat should be similarly denominated, if viciously used, as under the circumstances of this case. State v. Brown, 67 Iowa, 289, 25 N.W. 248; Crow v. State, 55 Tex. Cr. R. 200, 116 S.W. 52, 21 L. R. A. (N. S.) 497, and note.

The defendant claimed that he struck Singleton in self-defense and appellant's chief exception is the one directed to the following portion of his...