State v. Whitaker , 29 N.C. App. 602 ( 1976 )

225 S.E.2d 129 (1976) 29 N.C. App. 602

STATE of North Carolina
v.
Henry WHITAKER.

No. 751SC1042.

Court of Appeals of North Carolina.

June 2, 1976.

Atty. Gen. Rufus L. Edmisten, Raleigh, by Associate Atty. Richard L. Griffin, Raleigh, for the State.

Wilton F. Walker, Jr., Elizabeth City, for defendant.

MARTIN, Judge.

Defendant's two assignments of error relate to the failure of the court to submit to the jury the issue of simple assault in each case.

The defendant contends that an additional issue of simple assault upon Donald Dowdy and William Burney should have been submitted to the jury by the judge in his charge in that he left it to the jury to determine whether the broom handle and the knife were deadly weapons. The jury could have determined that the broom handle and knife were not deadly weapons, in which case they should have been able to find defendant guilty of simple assault.

"An instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. (Citation omitted). But where it may or may not be likely to produce such 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... ``If its character as being deadly or not depended upon the facts and circumstances it became a question for the jury with proper instructions from the court.' (Citations omitted)." State v. Perry, 226 N.C. 530, 39 S.E.2d 460 (1946).

In the instant case, whether the broom handle, nail clippers, and knife were deadly weapons were questions for the jury.

"When there is evidence tending to support a milder verdict than the one charged in the bill of indictment the defendant is entitled to have different views presented to the jury under a proper charge, and an error in this respect is not cured by a verdict convicting him of the crime as charged in the bill of indictment, for in such case it cannot be known whether the jury would have convicted of a less degree if the different views, arising on the evidence had been correctly presented by the trial court. (Citations omitted)." State v. Burnette, 213 N.C. 153, 195 S.E. 356 (1938).

Having submitted the question as to the deadly character of the weapons to the jury for their determination, it was incumbent upon the court to also submit to the jury the lesser degree of the crimes charged arising upon the evidence.

The failure of the court to charge the jury as to its right to return a verdict of guilty of simple assault, and to explain the law in respect thereto, deprived defendant of a substantial right, entitling him to a new trial.

New trial.

BROCK, C.J., and VAUGHN, J., concur.