Defendant has abandoned assignments of error 1, 2, 5, 6 and 12 by failing to advance any argument to support them in his brief. Rule 28(a), North Carolina Rules of Appellate Procedure. He does, however, properly raise seven other assignments of error for our review. After carefully considering all of defendant’s contentions, we conclude that the record reveals no prejudicial error requiring a new trial and, accordingly, affirm the trial court’s due entry of judgment upon his convictions.
We shall address the assignments of error relating to the legality of defendant’s arrest first. Defendant argues that the trial court erroneously admitted evidence of his photograph and fingerprints because these exhibits were obtained pursuant to his unlawful arrest on 15 July 1980. Simply put, defendant contends that the rape warrant issued for his arrest on 12 July 1980 did not meet the requirements of G.S. 15A-304(d). Herein, defendant makes much ado about nothing.
G.S. 15A-304(d) authorizes a judicial officer to issue an arrest warrant if he has sufficient information to make an independent determination that probable cause exists for believing a crime has been committed by the accused. Probable cause refers to the existence of a reasonable suspicion in the mind of a prudent person, considering the facts and circumstances presently known.
State v. Bright,
We shall now direct our attention to the assignments of error relative to defendant’s conviction of first degree rape. Defendant maintains that there was insufficient evidence to convict him of first degree rape upon the theory alleged in the indictment that he “did employ a deadly weapon, to wit: a pocket knife” in the commission thereof. At the outset, we note that defendant was convicted of first degree rape pursuant to G.S. 14-27.2 (Cum. Supp. 1979) which became effective 1 January 1980.
See
Law of May 29, 1979, ch. 682, § 14, 1979 Sess. Laws 729. In pertinent part, G.S. 14-27.2 provides that forcible, non-consensual vaginal intercourse constitutes first degree rape if the perpetrator “employs or displays a dangerous or deadly weapon.” By its terms, the new rape statute no longer requires an express showing by the State that a deadly weapon was used
in a particular manner
to make out a case of the crime in the first degree. In contrast, the prior statute, G.S. 14-21(1)(b) (Cum. Supp. 1977), obligated the State to show specifically that the weapon was used to overcome the victim’s resistance or to procure her submission.
See, e.g., State v. Hunter,
*300 Here, the indictment for first degree rape referred to defendant’s employment of a deadly weapon to support the charge. Defendant contends that, although the prosecutrix testified that he took the knife out of his pocket and displayed it to her in the tobacco barn after the completion of the first act of sexual intercourse, her testimony did not tend to show that he employed the knife during any of the illicit sexual deeds. The following excerpt from the victim’s testimony refutes any such conclusion:
He made me lie down on the bench and that is the first time he had sexual intercourse with me against my will. Then he pulled me up and told me to take my clothes off.
When I unzipped my dress it fell to the ground. I felt something under my feet and I picked it up, and it was a tobacco stick, and I came up and I hit him with it. Then he hit me back in the face. He hit me with his fist. He told me now I had done it, I had hurt him and he was going to kill me. He reached in his pocket and got out his knife and I grabbed his hand, the hand I had free and begged him not to kill me. He told me I had hurt him and I asked him what did he think he had done to me. He pushed me over to the quilt and I was sort of leaning over the bench. At that time he undid my bra and the strap was broken, and then he cut my slip off of me from behind.
I picked up the slip and I wiped my face with it and there was blood all over it. He had intercourse with me repeatedly and I continued begging him to let me go.
The plain meaning of the word “employ” is “to use in some process or effort” or “to make use of.” The American Heritage Dictionary of the English Language 428 (1969); Webster’s Third New International Dictionary 743 (1964). Viewing the foregoing statements of the victim in the light most favorable to the State, with the benefit of every reasonable inference arising therefrom, we hold that there was an adequate evidentiary basis for the jury to conclude that defendant had employed a deadly weapon by using the pocketknife in at least two ways: (1) to threaten the victim with death, whereby he effectively discouraged any further resistance to his demands, and (2) to remove an article of her underclothing, whereby he expedited the execution of additional *301 sexual assaults. Such evidence clearly satisfied the requirements of G.S. 14-27.2(a)(l)(a). See note 1, supra.
Defendant also argues, however, that the State did not demonstrate that his pocketknife was a deadly weapon. A deadly weapon is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm.
See State v. Cauley,
Firearms
§ 2 (1975); Annot.,
In the instant case, the trial court submitted the issue concerning the “deadly” character of defendant’s pocketknife to the *302 jury. Defendant contends that the evidence was insufficient for the court to do so since the knife itself was not offered into evidence, and the victim failed to describe the length of the knife’s blade. We disagree. The absence of such evidence was indeed a factor to be considered by the jury in its evaluation of the overall weight and worth of the State’s case on this point. The omission was not, however, fatal as the State presented other evidence which permitted a rational trier of fact to conclude that the pocketknife was a deadly weapon. The victim’s uncon-troverted testimony revealed that, prior to the kidnapping and rape, defendant had used the pocketknife to open a can of oil. He later used this same knife to cut off the victim’s slip. Defendant was a large man, approximately six feet tall and over 250 pounds. We believe that a knife sturdy enough to open a metal oil can and sharp enough to slash a piece of clothing could surely cause death or great bodily harm when wielded by a man of defendant’s physical stature. The assignment of error is overruled.
Defendant argues that the trial court’s instructions improperly permitted the jury to convict him of first degree rape upon a theory not legally charged in the indictment. Specifically, defendant took exception to the judge’s direction that a verdict of guilty of first degree rape would be warranted if, among other things, the jury found that defendant had “employed or displayed a dangerous or deadly weapon” during an act of forcible sexual intercourse. Defendant contends that this instruction misled the jury into believing that he could be convicted upon his display of a dangerous weapon, a theory different from, and one requiring less proof than, the formal allegation of his employment of a deadly weapon in the indictment.
It is.a cardinal rule of appellate review that the trial court’s instructions must be examined contextually as a whole.
State v. Alston,
*303 Here, the judge twice quoted the precise language of the applicable statute, G.S. 14-27.2(a)(l)(a), when he should have used the more limited wording of the indictment. After inaccurately referring to both the employment and display of a dangerous or deadly weapon, the judge additionally instructed the jury as follows:
A dangerous or deadly weapon is a weapon which is likely to cause death or serious bodily injury. In determining whether a knife is a deadly weapon you should consider the nature of the knife, the manner in which it was used and the size and strength of Ardell Sturdivant as compared to Elizabeth Harvey. So, I charge that if you find from the evidence beyond a reasonable doubt that on or about July the 11th, 1980, Ardell Sturdivant engaged in vaginal intercourse with Elizabeth Harvey . . . and that Elizabeth Harvey did not consent and that it was against her will and that Ardell Sturdi-vant employed a knife and that this was a dangerous or deadly weapon, it would be your duty to return a verdict of guilty of first degree rape.
First, we note that in the core of his instructions upon this point,
supra,
the judge did not mention the display of a weapon but properly emphasized that the jury would have to find, beyond a reasonable doubt, that defendant had
employed
the knife during the rapes to convict him of the crime in the first degree. In any event, we fail to see how the reference to both an employment and a display of a weapon could have been particularly detrimental to defendant since the State’s evidence clearly supported the conclusion that he had employed the knife by displaying it to the victim and threatening to kill her with it. Second, we hold that the reference to a “dangerous or deadly” weapon was not an impermissible variation from the language of the indictment. The terms “dangerous” and “deadly,” when used to describe a weapon, are practically synonymous. Black’s Law Dictionary 355, 359 (5th ed. 1979). Moreover, any possible illusion, as suggested by defendant, that a dangerous weapon is somehow less harmful than, and different from, a deadly one was plainly dispelled when the judge stated: “A dangerous or deadly weapon is a weapon which is likely to cause death or serious bodily injury.” This is the well-accepted definition of a
deadly
weapon in this State.
See State v. Cauley, supra,
Defendant brings forward yet another assignment of error concerning the trial court’s instructions on first degree rape. As defendant sees it, a unique problem arose because the State introduced evidence tending to show the commission of several acts of forcible intercourse to support a charge of only one count of first degree rape. His contentions are two-fold: (1) the court erred in not instructing the jury, on its own motion, that it could not consider any evidence of the first act of intercourse in determining his guilt of first degree rape since the victim did not testify that a weapon had been employed during that intitial rape, and (2) the court erred in not instructing the jury that they had to agree unanimously as to the existence of all of the elements of first degree rape with respect to one particular act of forcible vaginal intercourse. We hold that the judge adequately and fairly explained the law arising on the evidence, G.S. 15A-1232, and defendant was not entitled, on this record, to more specific or separate instructions absent a request therefor.
First, we find that, in substance, the trial court gave one of the admonitions which defendant argues were erroneously omitted. The trial judge directed the jury to return a verdict of guilty of first degree rape only if they found beyond a reasonable doubt that defendant had performed an act of forcible, non-consensual vaginal intercourse with the victim and had employed a deadly weapon in its commission. The judge further instructed the jury:
[I]f you do not so find or have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of first degree rape. If you do not find the defendant guilty of first degree rape, you must determine whether he is guilty of second degree rape.
*305 Second degree rape differs from first degree rape only that it is not necessary for the State to prove beyond a reasonable doubt that the defendant employed or displayed a dangerous or deadly weapon.
By instructing on the difference between first and second degree rape, the judge effectively prevented the jury from considering evidence of any sexual deed that did not entail the use of a deadly weapon on the first degree rape charge.
Second, we find no authority in this State for the proposition that a trial judge must give
sua sponte
an instruction regarding unanimity of the verdict as to a specific criminal act. Indeed, it is well settled law in this jurisdiction that, in the absence of a request, a judge is not even required to charge the jury in general about the need for an unanimous verdict since the defendant always has the right to have the jury polled.
State v. Ingland,
We shall finally consider defendant’s remaining contentions concerning the validity of his kidnapping conviction. Defendant first contends that the trial court erred in denying his motion to dismiss the kidnapping charge. We disagree. It is well established that a criminal charge against a defendant is not subject to dismissal unless the State fails to present substantial evidence of
*306
his guilt on every essential element of the particular offense.
State v. Cox,
Viewed in the light most favorable to the State, the evidence permitted a rational trier of fact to find that defendant commenced an effective restraint of the victim in her automobile by reentering it, after he had put oil and water in the engine, under the fraudulent pretext of seeking a ride to the home of a crippled friend. This constraint of the victim continued as defendant directed her to turn off the highway onto a dirt road, whereupon he cut off the car engine, made physical advances upon her, refused her repeated requests for him to leave the vehicle and later, while persisting in the pretense of going to the home of a crippled friend, made her drive still further along that deserted road. Restraint of the victim in her automobile did not end until defendant grabbed the keys out of the ignition and pulled her from the car to take her into the tobacco barn.
The State’s evidence also permitted the jury to find that defendant’s unlawful restraint caused the victim to remain in her car “in a place or places other than where she wanted to be.” The victim was driving to her home in South Carolina with her son on a Friday evening. Although engine trouble caused her to make a detour in the direction of Raeford, North Carolina, clearly it was *307 not her intent to linger in that area after the completion of the required repairs. Nonetheless, when the car was again ready for travel, she agreed to delay her journey for a while longer in order to give defendant a ride to another nearby residence. In light of these circumstances, it is obvious that defendant’s chicanery directly induced the victim to remain in her car in a rural, deserted location in this state when she actually wished to be in another place — her home in South Carolina.
A kidnapping can be just as effectively accomplished by fraudulent means as by the use of force, threats or intimidation.
State v. Alston,
Ten days after oral arguments were concluded in this Court, defendant filed a motion in arrest of judgment and for appropriate relief upon the ground that the kidnapping indictment was fatally defective. Several statutes in our criminal procedure law convince us that this motion is properly before the Court.
*308
G.S. 15A-1415(b)(2) provides that a motion for appropriate relief, which is based upon the trial court’s lack of subject matter jurisdiction, may be asserted by a defendant “any time” after verdict. It is elementary that a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony. N.C. Const. Art. I, § 22;
State v. Simpson,
In his motion, defendant argues that the indictment was fatally defective under G.S. 14-39(a) because it failed to allege specifically that the kidnapping was effected
without the victim’s consent.
To sustain his position, defendant relies exclusively upon a recent decision of the Court of Appeals,
State v. Froneberger,
The Jurors For The State Upon Their Oath Present that on or about the 13 day of July, 1979, in Mecklen-burg County, Ronald Tyree Fronberger, did unlawfully, wilfully and feloniously confine, restrain, and remove another person, Ethell Wilson, for the purpose of facilitating the commission of the felony of murder in teh [sic] first degree, adn [sic] said Ethell Wilson was killed as a result of said kidnapping, in violation of G.S. 14-39.
The Court of Appeals concluded that the slight misspelling of defendant’s name (absence of “e” as fifth letter) and the absence of an allegation as to the age of the victim did not render the indictment defective. The Court further held, however, that the failure to allege the element of lack of consent in the indictment did constitute fatal error. First, we note that identical indict
*309
ments were returned against Froneberger’s “partners” in the charged kidnapping, and that their convictions have been upheld on appeal.
State v. Norwood,
Adequate notice of the nature of a criminal accusation is a necessary corollary to the jurisdictional requirement of an indictment in capital cases. N.C. Const. Art. I, §§ 22-23. This constitutional mandate, however, merely affords a defendant the right to be charged by a lucid prosecutive statement which factually particularizes the essential elements of the specified offense.
See
G.S. 15A-924(a)(5);
State v. Perry,
This case is clearly governed by the exception set out in
State v. Bryant,
*310 Though the general rule is, that a proviso contained in the same section of the law ... in which the defence is defined, must be negatived, yet where the charge itself is of such a nature that the formal statement of it is equivalent in meaning to such negative averment, there is no reason for adhering to the rule, and such a case constitutes an exception to it.
See State v. Epps,
More importantly, we are not convinced that defendant’s indictment utterly failed to indicate that the kidnapping was accomplished without the victim’s consent. The indictment stated:
The Jurors For The State Upon Their Oath Present that on or about the 11 day of July, 1980, in Hoke County Ardell Sturdivant unlawfully and wilfully did feloniously kidnap Elizabeth Sellers Harvey, a person who had attained the age of sixteen (16) years, by unlawfully restraining her for the purpose of facilitating the commission of a felony, to wit: rape, in violation of North Carolina General Statutes Section 14-39. (Emphases added.)
The term “kidnap,” by itself, continues to have a precise and definite legal meaning under G.S. 14-39(a), to wit, the unlawful seizure of a person against his will. Black’s Law Dictionary 781 (5th ed. 1979).
See State v. Norwood,
In conclusion, we note that the “true and safe rule” for prosecutors in drawing indictments is to follow strictly the precise
*311
wording of the statute because a departure therefrom unnecessarily raises doubt as to the sufficiency of the allegations to vest the trial court with jurisdiction to try the offense.
6
State v. Carpenter,
In defendant’s trial, we find no error.
No error.
Notes
. We perceive that the Legislature intended to make implicit in G.S. 14-27.2 a matter of ordinary common sense: that the use of a deadly weapon, in any manner, in the course of a rape offense, always has some tendency to assist, if not entirely enable, the perpetrator to accomplish his evil design upon the victim, who is usually unarmed.
. No item, no matter how small or commonplace, can be safely disregarded for its capacity to cause serious bodily injury or death when it is wielded with the requisite evil intent and force.
See, e.g., State v. Joyner,
. Indeed, the case reports of this Court are replete with illustrations of kidnapping executed by deception.
See, e.g., State v. Wilson,
. The State petitioned the Court for discretionary review of Froneberger, supra, on 21 September (1981). This matter is still pending.
. Prior to 1 July 1975, G.S. 14-39 simply provided that “It shall be unlawful . . . to kidnap or cause to be kidnapped any human being, or to demand a ransom . . . to be paid on account of kidnapping. . . .” Since the elements of the crime were not statutorily delineated, our courts applied the common law definition of kidnapping. Thus, under the former statute, the unlawful taking and carrying away of a person by force against his will constituted kidnapping in this State.
See State v. Ingland,
. A brief and informal survey of the records of twenty-five kidnapping cases appealed to this Court since the enactment of the new kidnapping statute disclosed four other cases where the indictment failed to negate the element of consent.
State v. Norwood,