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North Carolina v. McKinnon

Filed: November 3, 1981.

STATE OF NORTH CAROLINA
v.
CLETUS JEROME MCKINNON



Appeal by defendant from Friday, Judge. Judgment entered 3 December 1980 in Superior Court, Catawba County. Heard in the Court of Appeals 15 October 1981.

Vaughn, Judge. Judges Hill and Whichard concur.

Vaughn

Defendant brings forward three assignments of error. None discloses prejudicial error.

Defendant first argues that having submitted to the jury the question of the alleged deadly character of the knife, the court was then required to charge the jury as to the lesser included offense

of assault inflicting serious injury. State v. Whitaker, 29 N.C. App. 602, 225 S.E.2d 129 (1976).

It is well established in North Carolina that when there is some evidence to support a lesser included offense of the one charged, defendant is entitled as a matter of law to have the jury instructed on that lesser offense. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); State v. Williams, 51 N.C. App. 397, 276 S.E.2d 715 (1981). In this cause, however, there is no evidence to support a charge of misdemeanor assault.

A knife may or may not be considered a deadly weapon depending upon the manner in which it is used or the part of the body at which its force is aimed. State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978). The evidence presented shows that defendant purposefully stabbed Bennie McKinnon in the chest. He was not injured by a wild swing of defendant's knife during a scuffle. The actual results caused by the weapon may be considered in determining whether the weapon is deadly. State v. Roper, 39 N.C. App. 256, 249 S.E.2d 870 (1978). Here, there was uncontradicted testimony that defendant's blow caused Bennie McKinnon's lung to collapse.

Where the circumstances of the use of an alleged deadly weapon admit of but one conclusion, the question of the weapon's character is one of law for the court to declare.

'Any instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. S. v. Craton, 28 N.C. p. 179. The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself. S. v. Archbell, 139 N.C. 537; S. v. Sinclair, 120 N.C. 603; S. v. Norwood, 115 N.C. 789

Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly within the foregoing definition is one of law, and the Court must take the responsibility of so declaring. S. v. Sinclair, supra. But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at

which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury. . . . Krchnavy v. State, 43 Neb., 337. A pistol or a gun is a deadly weapon (S. v. Benson, 183 N.C. 795); and we apprehend a baseball bat should be similarly ...


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