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38 N.C. App. 382

State v. Daniels

Court of Appeals of North Carolina

Decided October 17, 1978

Court of Appeals of North Carolina · decided 1978-10-17

Key passage — most relied on by later courts

“[i]n State v. Perry, 226 N.C. 530 , 39 S.E.2d 460 (1946), ... that a brick thrown with force by the defendant constituted a deadly weapon [ per se ], and it was not error for the trial court to refuse to submit to the jury the [the lesser included offense] of simple assault, even though the question of whether the brick as used was a deadly weapon was submitted to the jury.”

quoted by 1 later decision, including State v. Thomas

“If the weapon used ... by the defendant was a deadly weapon per se the trial court was not required to charge on the lesser included offense of simple assault, even though the trial court did not charge that the instrument used in the assault was a deadly weapon [ per se ].”

quoted by 1 later decision, including State v. Thomas

Relies on State v. . Perry · State v. Perry · State v. . Hefner

Good law ✅— No negative treatment on recordhow we know

Decided 1978-10-17

How this case has been cited

Cited by 10 later decisions — most recently July 2016

2 federal appellate · 8 state decisions

6019781980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CLARK, Judge.

¶1The defendant assigns as error the failure of the trial court to submit to the jury the lesser offense of simple assault. If the weapon used in the assault by the defendant was a deadly weapon per se the trial court was not required to charge on the lesser included offense of simple assault, even though the trial court did not charge that the instrument used in the assault was a deadly weapon as a matter of law.

¶2Though there is some discrepancy in the designation of the weapon by the various witnesses, we find from the record on appeal that the weapon was a blackjack. The narration of the testimony in the record reveals that Jackie Campbell, the owner of the weapon, referred to it as a “blackjack.” The other two witnesses for the State used the word “blackjack.” The defendant referred to the weapon as a “blackjack” several times and a *384“stick” several times. Defendant’s other witness also referred to the weapon as a “stick.” In the instruction's to the jury the trial judge, in summarizing the testimony of State’s witness Rodney Atkins, said: “He said the blackjack was about eighteen inches long. Of course, you know what a blackjack is.” Subsequently, after defining a deadly weapon as a weapon which is likely to cause death or serious injury, the trial judge added: “This weapon was described as about eighteen inches long, bound in leather.” The defendant makes no exceptions to the instructions referred to. Under these circumstances we conclude that the weapon, about eighteen inches long and bound in leather, was a blackjack.

¶3It has been held that a blackjack is a deadly weapon per se. State v. Hefner, 199 N.C. 778, 155 S.E. 879 (1930). In both Hefnerand the case sub judice the defendant struck the victim with force on the head.

¶4In State v. Perry, 226 N.C. 530, 39 S.E. 2d 460 (1946), it was held that a brick thrown with force by the defendant constituted a deadly weapon as a matter of law, and it was not error for the trial court to refuse to submit to the jury the question of defendant’s guilt of simple assault, even though the question of whether the brick as used was a deadly weapon was submitted to the jury.

¶5The trial court did not err in failing to submit the lesser offense of simple assault to the jury.

¶6Nor do we find merit in defendant’s other assignment of error, the failure of the trial court to define assault. The jury was instructed that it must find from the evidence and beyond a reasonable doubt that defendant “struck Mr. Jackie Campbell over the head with a blackjack.” This instruction was similar to that made by the trial court in State v. Harris, 34 N.C. App. 491, 238 S.E. 2d 642 (1977), where it was held the instruction was sufficient to define and explain the law arising on the evidence. The defendant relies on State v. Hickman, 21 N.C. App. 421, 204 S.E. 2d 718 (1974), where this court found reversible error because the trial court charged that the jury must find beyond a reasonable doubt that defendant “ ‘assaulted Clayton Fenner with a knife,’ ” and the court did not define “assault.” 21 N.C. App. at 422, 204 S.E. 2d at 719. The instructions in the case before us are clearly distinguishable.

¶7*385We find that the defendant had a fair trial free from prejudicial error.

¶8No error.

Chief Judge BROCK and Judge MARTIN (Harry C.) concur.
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