State v. Davis

234 S.E.2d 762 (1977) 33 N.C. App. 262

STATE of North Carolina
v.
Vernon Wayne DAVIS and Willie J. Newsmith, III.

No. 7626SC1009.

Court of Appeals of North Carolina.

May 18, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Jack Cozort, Raleigh, for the State.

Public Defender Michael S. Scofield by Asst. Public Defender Richard D. Boner, Charlotte, for defendant Vernon Wayne Davis.

Peter H. Gerns, Charlotte, for defendant Willie J. Newsmith, III.

MARTIN, Judge.

In his charge to the jury Judge Falls instructed as to assault with a deadly weapon inflicting serious injury as follows:

"And the third essential element, that the defendant inflicted serious bodily injury. Now, I have told you what the injury is, and you have heard what injuries he has received and I shall not repeat that. That doesn't mean it isn't important. It is an essential element. A fractured skull is a serious injury." (Emphasis added.)

Both defendants contend that the trial judge, by instructing that the victim's skull fracture was a serious injury, violated G.S. 1-180. They argue that the instruction was not only prejudicial but that it also invaded the province of the jury. We disagree.

In making their arguments concerning this assignment of error, defendants cite the case of State v. Whitted, 14 N.C.App. 62, 187 S.E.2d 391 (1972). In that case, a new trial on a charge of assault with a deadly weapon with the intent to kill inflicting serious injury was granted because the trial judge instructed the jury that " . . . you will find that there was serious injury, if you believe the evidence as it all tends to show here, no question about the serious injury . . .." The case at bar is, however, distinguishable from the Whitted case because there the parties offered contradictory evidence concerning the seriousness of the injury.

The uncontradicted evidence in the instant case shows that the victim was struck in the head; that he was immediately taken to Charlotte Memorial Hospital where he stayed for nine days; that a neurosurgeon had to perform surgery; that the surgeon had to peel back fragments of bone in order to repair the skull; that the victim's head is still indented; and that he sustained surgical bills of $1,080 and hospital bills of $15,000. We hold that where, as in the case at bar, the State's evidence with respect to the injuries is uncontradicted and the injuries could not conceivably be considered anything but serious, then the trial judge may instruct the jury that if they believe the evidence as to the injuries, then they will find that there was serious injury. State v. Springs, N.C.App., 234 S.E.2d 193 (1977). This assignment of error is overruled.

By their next assignment of error, defendants contend that the trial court erred in failing to instruct on the lesser offense of assault with a deadly weapon. Again, we disagree.

It is clear that the trial court is not required to instruct on the issue of a defendant's guilt of a lesser offense of the crime charged unless there is 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). The presence of such evidence is the determinative factor and the " . . . contention that the jury might accept the State's evidence in part and might reject it in part will not suffice." State v. Hicks, 241 N.C. 156, 160, 84 S.E.2d 545, 547 (1954). In the case at bar, the evidence showed that the victim had been struck in the back of the head with a stick about two feet long; that he was hospitalized for nine days; that a neurosurgeon had to operate in order to repair the injuries to his skull; that fragments of bone had to be peeled back; and that his head is still indented from the injuries. On these facts, we are of the opinion that the defendants were not entitled to an instruction concerning 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). This assignment of error is therefore overruled.

Defendants received a fair trial free from prejudicial error.

No error.

BRITT and PARKER, JJ., concur.