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39 N.C. App. 256

249 S.E.2d 870

State v. Roper

Court of Appeals of North Carolina

Decided December 19, 1978

Court of Appeals of North Carolina · decided 1978-12-19

Key passage — most relied on by later courts

“that it was the proper function of the trial court to determine that this knife was a deadly weapon per se . As a result, there was no error in the judge's failure to submit the lesser included offense of assault inflicting serious injury. The trial court need not submit a lesser included offense where there is no evidence to support such a verdict.”

quoted by 1 later decision, including State v. Moore

“The actual effects produced by the weapon may [] be considered in determining whether it is deadly.”

quoted by 1 later decision, including 172 N.C. App. 261 - State v. Caudle

Relies on State v. Joyner · State v. Black · 21 N.C. App. 640 - State v. Black

Good law ✅— No negative treatment on recordhow we know

Decided 1978-12-19

How this case has been cited

Cited by 23 later decisions — most recently March 2019

23 state decisions

13019781980199020002010decided

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 →

ERWIN, Judge.

¶1 Defendant’s sole assignment of error is that the trial judge failed to charge the jury on the lesser included offense of assault inflicting serious injury. He argues that whether the knife used here was a deadly weapon should have been a jury question. We do not agree.

¶2 The description of the knife in this case was given by the victim: “a keen bladed knife or slick bladed knife” and “[defendant] cut me with a pocket knife.” The State argues that this is sufficient to require the court to find that the knife was a deadly weapon per se.

¶3 Whether a weapon is deadly is generally a decision for the court, State v. West, 51 N.C. 505 (1859), and “[a]n instrument which is likely to produce death or great bodily harm under the circumstances of its use is properly denominated a deadly' weapon.” State v. Joyner, 295 N.C. 55, 64, 243 S.E. 2d 367, 373 (1978). We believe it is clear that a “keen bladed pocketknife” used under the circumstances here, that is, slapped across the victim’s throat, is “likely to produce great bodily harm.” “An instru *258 ment . . . may be deadly or not, according to the mode of using it. . . State v. West, supra at 509. The actual effects produced by the weapon may also be considered in determining whether it is deadly. State v. West, supra. Here, the uncontradicted testimony is that the injury was an extremely serious one.

¶4 We find that it was the proper function of the trial court to determine that this knife was a deadly weapon per se. As a result, there was no error in the judge’s failure to submit the lesser included offense of assault inflicting serious injury. The trial court need not submit a lesser included offense where there is no evidence to support such a verdict. State v. Black, 21 N.C. App. 640, 205 S.E. 2d 154, aff’d, 286 N.C. 191, 209 S.E. 2d 458 (1974).

¶5 No error.

Judges Parker and Hedrick concur.
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