State v. Roper

249 S.E.2d 870 (1978)

39 N.C. App. 256

STATE of North Carolina v. Bud ROPER.

No. 7829SC774.

Court of Appeals of North Carolina.

December 19, 1978.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Myron C. Banks, Raleigh, for the State.

Robert L. Harris, Rutherfordton, for defendant appellant.

ERWIN, Judge.

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.

*871 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.

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 instrument. . . 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.

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).

No error.

PARKER and HEDRICK, JJ., concur.