State v. Springs , 33 N.C. App. 61 ( 1977 )

234 S.E.2d 193 (1977) 33 N.C. App. 61

STATE of North Carolina
v.
John Williams SPRINGS.

No. 7626SC782.

Court of Appeals of North Carolina.

April 20, 1977. Certiorari Denied July 24, 1977.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Ann Reed, Raleigh, for the State.

Public Defender Michael S. Scofield by Asst. Public Defender Mark A. Michael, Charlotte, for defendant-appellant.

Certiorari Denied by Supreme Court July 24, 1977.

MORRIS, Judge.

In his charge to the jury, Judge Baley instructed as to assault with a deadly weapon with intent to kill inflicting serious injury as follows:

"The fourth thing that the State must prove beyond a reasonable doubt is that the defendant inflicted serious injury, and you have heard testimony with respect to the injuries which the witness Brooks received, and I charge you that those would constitute serious injuries." (Emphasis supplied.)

Judge Baley also submitted the lesser offense of assault with a deadly weapon inflicting serious injury and charged that

". . . for you to find the defendant guilty of assault with a deadly weapon inflicting serious injury, the State must prove three things: . . . And third, that the defendant inflicted serious injury, and the injuries sustained that sent him to the hospital, if you believe those to be the facts and find beyond a reasonable doubt that that was true, would constitute serious injuries." (Emphasis supplied.)

Defendant contends that the trial judge erred in instructing the jury that Brooks' injuries were serious injuries as a matter of law. We disagree.

The uncontradicted evidence was that the victim remained unconscious for three days, was hospitalized in Memorial Hospital for eight days, and lost two ribs and a lung as the result of the shotgun blast. There can be no possible doubt that the injuries received were serious. Where, as here, the evidence with respect to the injuries is not contradicted and the injuries could not conceivably be considered less than serious, we are of the opinion, and so hold, that the court may instruct the jury that if they believe the evidence as to injuries, they will find that there was serious injury. This assignment of error is overruled.

Defendant contends that the judge erred in failing to instruct as to the legal definition of assault. Again, we disagree. In State v. Hickman, 21 N.C.App. 421, 423, 204 S.E.2d 718, 719 (1974), we ordered a new trial because

"[a]t no place in the charge did the trial judge instruct the jury as to what the term ``assault' means or what constitutes an assault. An assault is a legal term with which jurors are not apt to be familiar. We think it incumbent upon the trial judge to define or otherwise explain to a jury the meaning of the legal term ``assault'." (Emphasis supplied.)

Though the charge in the present case did not contain a definition of assault, the judge did instruct that the State was required to prove ". . . that the defendant assaulted Leonard Brooks by intentionally and without justification or excuse shooting Leonard Brooks in the upper left chest with a shotgun. . . ." (Emphasis supplied.) We believe that this language was sufficient to "otherwise explain" an assault to the jury so that they had no question as to the meaning of the term. This explanation was given the jury in the charge on assault with a deadly weapon with intent to kill inflicting serious injury in the instructions on the elements of the crime and the mandate. It was similarly repeated in the instructions on assault with a deadly weapon inflicting serious injury. The charge was sufficient, and this assignment is overruled.

The trial judge submitted three possible verdicts to the jury: guilty of assault with a deadly weapon with intent to kill inflicting serious bodily injury; guilty of assault with a deadly weapon inflicting serious injury; and not guilty. Defendant argues that the judge erred in failing also to submit the lesser offenses of assault with a deadly weapon with intent to kill; assault with a deadly weapon; and assault inflicting serious injuries. We disagree. The trial court is not required to submit the issue of defendant's guilt of lesser offenses of the crime charged where there is no evidence from which the jury could find that the lesser offense was committed. State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Williams, 31 N.C.App. 111, 228 S.E.2d 668 (1976). Here, the evidence showed that the prosecuting witness had been shot in the chest by a shotgun at close range; that the victim was unconscious for three days and was hospitalized for eight days; and that he lost two ribs and a lung as a result of the shooting. On these facts, defendant was not entitled to a submission of assault with a deadly weapon with intent to kill or assault with a deadly weapon. State v. Turner, 21 N.C.App. 608, 205 S.E.2d 628 (1974); State v. Brown, 21 N.C.App. 552, 204 S.E.2d 861 (1974). Moreover, since the evidence that defendant used a deadly weapon was uncontradicted, he was not entitled to a charge on assault inflicting serious injury. This assignment is overruled.

At trial, Charlotte Police Officer L. D. Blakeney was permitted to testify, over objection, that during the course of his investigation he asked bystanders what had occurred and that after hearing their responses, he placed defendant under arrest. Defendant maintains that the testimony was hearsay and should have been excluded. Again, we cannot agree. "Evidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it." State v. Robbins, 275 N.C. 537, 547, 169 S.E.2d 858, 864-65 (1969); 1 Stansbury, N.C. Evidence, § 138, p. 458. Clearly, the testimony here objected to cannot be classified as hearsay since it consisted only of what the officer did, and not of statements made to him by third persons. Accordingly, it was not error for the trial judge to admit the testimony.

In his final assignment of error, defendant contends that the trial court erred in failing to instruct the jury that the indictment did not constitute evidence against defendant. However, the record reveals that defendant did not request the court for such an instruction. It is well settled in this State that where a defendant desires greater elaboration in the charge on a particular aspect of the case, he must make a special request therefor. Otherwise the court is not required to so charge the jury. State v. Boyd, 278 N.C. 682, 180 S.E.2d 794 (1971). We have carefully reviewed the judge's charge in its entirety and hold that it contains a full and fair summary of the evidence and an accurate statement of the law applicable thereto.

No error.

VAUGHN and MARTIN, JJ., concur.