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61 N.C. App. 610

301 S.E.2d 429

State v. Jacobs

Court of Appeals of North Carolina

Decided April 5, 1983

Court of Appeals of North Carolina · decided 1983-04-05

Key passage — most relied on by later courts

“[s]ome weapons are per se deadly, and others, owing to the violence and manner of use, become deadly. In the latter class of cases, where the deadly character of the weapon is to be determined by the relative size and condition of the parties and the manner in which it is used, it is proper and necessary to submit the matter to the jury with proper instructions.”

quoted by 4 later decisions, including 180 N.C. App. 188 - State v. Brunson, 138 N.C. App. 37 - State v. Krider

“The defendant has been charged with assault with a deadly weapon inflicting serious injury. For you to find the defendant guilty of this offense the state must prove three things beyond a reasonable doubt. First, that the defendant assaulted victim intentionally beating him with an unknown object, a deadly weapon, by beating him in the face. Secondly the defendant used a deadly weapon. A deadly weapon is a weapon which is likely to cause death or serious bodily injury. Hands and feet can be a deadly weapon. In determining whether hands and feet or another unknown object was a deadly weapon you should consider the nature of whatever object was used, the manner in which it was used and the size and strength of the defendant as compared to the victim. And third, that the defendant inflicted serious injury upon the victim. . . .”

quoted by 1 later decision, including 173 N.C. App. 270 - State v. Lawson

Relies on State v. Sturdivant · State v. Joyner · State v. Palmer

Good law ✅— No negative treatment on recordhow we know

Decided 1983-04-05

How this case has been cited

Cited by 32 later decisions — most recently March 2019 · most notably State v. Gordon (1989), 104 N.C. App. 766 - State v. Grumbles (1991)

32 state decisions

2201983199020002010decided

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 →

HEDRICK, Judge.

¶1 Defendant first contends that judgment should be arrested because an assault with his fists does not satisfy the “deadly weapon” element of the indictment. A deadly weapon is “any article, instrument or substance which is likely to produce death or great bodily harm.” State v. Sturdivant, 304 N.C. 293, 301, 283 S.E. 2d 719, 725 (1981) (citations omitted). The defendant, a thirty-nine year old male who weighed two hundred ten pounds, hit the victim, a sixty year old woman, in the head and stomach. Brain hemorrhages and other injuries resulted from the beating, causing the victim to be unable to care for herself. The defendant’s fists could have been a deadly weapon given the manner in which they were used and the relative size and condition of the parties. See State v. Joyner, 295 N.C. 55, 243 S.E. 2d 367 (1978); State v. Archbell 139 N.C. 537, 51 S.E. 801 (1905).

¶2 Since defendant’s fists could have been a deadly weapon in the circumstances of this assault, the indictment was sufficient. The indictment specifically stated that defendant used his fists as a deadly weapon and gave facts demonstrating their deadly character. The Supreme Court of North Carolina in State v. Palmer, 293 N.C. 633, 639-640, 239 S.E. 2d 406, 411 (1977) has noted that,

it is sufficient for indictments or warrants seeking to charge a crime in which one of the elements is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly that the weapon used was a ‘deadly weapon’ or to allege such facts as would necessarily demonstrate the deadly character of the weapon. (Emphasis in original.)

¶3*612 Next, defendant contends that the trial court erred in instructing the jury to consider lesser included offenses after acquitting defendant of assault with a deadly weapon, inflicting serious injury. The jury instruction was not ideal, but it could not have coerced the jury into returning a verdict of guilty on the greater offense. A judge may direct the jury to decide upon lesser included offenses only after finding defendant not guilty on the charged offense. State v. Wilkins, 34 N.C. App. 392, 399-400, 238 S.E. 2d 659, 664-665 (1977).

¶4 The defendant had a fair trial free from prejudicial error.

¶5 No error.

Judges Whichard and Braswell concur.
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