State v. . Randolph, 45 S.E.2d 132

State v. . Randolph

45 S.E.2d 132

N.C.

1947

Check Treatment

*231 WiNbobke, J.

Thе brief of defendant, appellant, as we understand it,■ assigns error in four respects in the trial court: I. Denial of his motion in arrest of Judgment. II. Admitting testimony as to the use of the alleged deadly weapоn, “a certain knife,” without requiring the production of it in court. III. Denial of his motions for judgment as of non-suit. IV. Eefusal to submit to the jury his plea of self-defense.

In connection with these: The bill of indictment against dеfendant appellant is founded on the statute, Gr. S., 14-32, which provides in pertinent part, that “any ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍person who assaults another with a deadly weapon with intent to kill and inflicts serious injury not resulting in death, shall bе guilty of a felony, etc.”

I. Defendant, appellant, bases his motion in arrest of judgment upon the ground that the bill of indictment is fatally defective in that the only description of the deadly weapon therein alleged is “a certain knife.” The exception to denial of the motion is untenablе. The bill of indictment, as it appears in the record, follows substantially the language of the statutе as to the essential elements. And where this is done, the bill of indictment, in conformance with the rule ordinarily applied in the decisions of this Court, meets the requirements of law. S. v. Gibson, 221 N. C., 252, 20 S. E. (2d), 51; S. v. Jackson, 218 N. C., 373, 11 S. E. (2d), 147; S. v. Cole, 202 N. C., 592, 163 S. E., 594, and numerous other cases.

II. As to this assignment: We know of no rule of law, and counsel for defendant, appellant, cites none, that requires the production of the alleged deadly weapon on the trial of a criminal prosecution fоr an assault with a deadly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍weapon with intent to kill, etc., as a condition on which depends the competency and admissibility of testimony as to the use made of the weapon. Indeed, this Court recognizes that the weapon may not be produced. Ve find this in S. v. Collins, 30 N. C., 407, in the following declaration оf pertinent principle: “Whether the instrument used was such as is described by the witnesses, where it is' not produced, or, if produced, whether it was the one used, are questions of fact, but these ascertained, its character is pronounced by the law.” Moreover, the actual effects рroduced by the weapon may aid in determining its character, and in showing that the person using it ought to be aware of the danger of thus using it. S. v. West, 51 N. C., 505.

III. While the record discloses that exceptions were taken to the denial of defendant’s motions for judgment as of nonsuit, and that they are incorporаted in the assignments of error, they are not stated in defendant’s brief as the subject of any question ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍involved on this appeal. Nor are they discussed as such in the brief, — unless, perchance, the statement therein that “the effect of the use of the knife, as testified to by the prosecuting witness аnd his own conduct and condition immediately *232 thereafter, are not sufficient to establish the faсt or to allow the jury to infer that the knife used was a deadly weapon,” — was intended as argument on these exceptions. “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authorities cited, will be taken as abandоned by him.” Rule 28 of The Rules of Practice in the Supreme Court of North Carolina, 221 N. C., 544. Nevertheless, this Court, sрeaking of a situation where the evidence failed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to detail the size and character of the weapon used, has declared in S. v. Watkins, 200 N. C., 692, 158 S. E., 393, that “any instrument which is likely to produce death or great bodily harm under the circumstances of its use, is properly denominated a deadly weaрon. S. v. Craton, 28 N. C., 165, at page 179. But where it may or may not be likely to produce such results, according to the manner of its use on 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. S. v. West, 51 N. C., 505.” To like effect, quotations from, and citation оf other cases follow. And it may not be cause for surprise that the jury found a knife, which when slashed by defendant across the upper arm and lower back, along the belt line, of the assailed, рroduced cuts requiring sixteen inches in all — is “a weapon likely to produce death or great bodily harm.”

IY. As to defendant’s plea of self-defense: The surrounding facts and circumstances, and nоt his simple belief, constitute the determining factors as to whether he acted on the defensivе, and not as an aggressive participant in the fight, S. v. Harrell, 107 N. C., 944, 12 S. E., 439, that is, whether he entered the fight willingly in the sense of voluntarily and without lawful excuse. S. v. Crisp, 170 N. C., 785, 87 S. E., 511. In this respect all the evidence shows that the cab of Bolton wаs on one side of the street, and the truck operated by defendant, on the other. And, taking defendant’s version “as Bolton opened the door and attempted to come on him with the tire irоn, the defendant . . . pulled out his knife, opened it, and jumped out of his truck and met Bolton in the street.” In the light of this admission, it is clear that he entered the fight voluntarily and without lawful excuse. Hence, there is no error in the refusal of the trial judge to submit this plea of self-defense to the jury.

In the trial below, we find

No error.