State v. Thompson

219 S.E.2d 566 (1975) 27 N.C. App. 576

STATE of North Carolina
v.
Freddie Wilson THOMPSON.

No. 7510SC483.

Court of Appeals of North Carolina.

November 19, 1975. Certiorari Denied January 6, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Isaac T. Avery, III, Raleigh, for the State.

Carl E. Gaddy, Jr., Raleigh, for defendant-appellant.

Certiorari Denied by Supreme Court January 6, 1976.

CLARK, Judge.

In his final mandate to the jury the trial judge charged the jury to return a verdict of guilty of assault on a female if it found from the evidence and beyond a reasonable doubt that defendant "grabbed or took Vivian Thompson by the arm in such a fashion and in such a manner as to put her in fear of bodily harm" and that she was a female person and he, the defendant, was a male person. Defendant assigns this portion of the charge as error and contends that it fails to include the elements of assault in that the word "immediate" did not precede the words "bodily harm."

The Supreme Court of North Carolina has approved the broad definition that an assault is a show of violence causing a reasonable apprehension of immediate bodily harm. State v. Allen, 245 N.C. 185, 95 S.E.2d 526 (1956); State v. Hill, 6 N.C.App. 365, 170 S.E.2d 99 (1969). The Court has also approved the general common law rule that an assault is an intentional offer or attempt by force or violence to do injury to the person of another. State v. Hefner, 199 N.C. 778, 155 S.E. 879 (1930).

The evidence for the State discloses a battery, the forceful pulling and twisting of her arm. While every battery includes an assault, every assault does not include a battery. A battery is the unlawful application of force to the person of another by the aggressor himself or by some substance which he puts in motion. State v. Hefner, supra. Where "the evidence discloses an actual battery, whether the victim is ``put in fear' is inapposite." State v. Lassiter, 18 N.C.App. 208, 212, 196 S.E.2d 592, 595 (1973).

While we do not commend the trial judge's final mandate as a model of clarity and accuracy, the State's evidence tends to show bodily harm occurring at the time of the battery; therefore, the failure to include the word "immediate" before the words "bodily harm" is not error.

We have carefully examined the other assignments of error, and we find the evidence sufficient to support the verdict and no prejudicial error in the admission of evidence challenged by the defendant.

No error.

BRITT and PARKER, JJ., concur.