State v. Plemmons

Stact, C. J. The defendant is charged with an assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death. This is made a felony by Gr.S. 14-32. The use of the words “and murder” following the phrase “with intent to kill” in the bill was surplusage and placed no additional burden on the prosecution. The jury was careful to spell out its verdict and the spelling appears to have followed the language of the statute. S. v. Ellison, post, 59; S. v. Lassiter, 208 N.C. 251, 179 S.E. 891. The defendant complains that the trial court failed to explain to the jury “what is meant by the term, ‘with intent to kill,’ as used in the statute.” The court opened his charge to the jury with an explanation of the different grades of an assault, dependent upon the attendant circumstances of aggravation, and closed the explanation with this statement and instruction: “Then there is another type of assault, assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death. To constitute that offense the assault must be made with a deadly weapon; there must be an intent to kill and serious injury inflicted, not resulting in death.” The jury could hardly have failed to understand what was meant by the expression “with intent to kill.” It is self-explanatory. There is no point in elaborating the obvious. S. v. Gore, 207 N.C. 618, 178 S.E. 209. The instruction follows closely the decision in S. v. Hefner, 199 N.C. 778, 155 S.E. 879, wherein the essential elements of the offense ave enumerated as (1) an assault (2) with a deadly weapon (3) with intent to kill and (4) the infliction of serious injury (5) not resulting in death. S. v. Bentley, 223 N.C. 563, 27 S.E. 2d 738. The defendant also complains that his plea of self-defense was inadequately submitted to the jury. The substance of the charge in this respect was as follows: “If the defendant was there at his place of business and an assault was made upon him he had a right to protect himself. It does not make any difference whether it was a felonious assault or a non-felonious assault he would have a right to protect himself and use such force as was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.” This instruction affords the defendant no ground for a valid assignment of error. S. v. Marshall, 208 N.C. 127, 179 S.E. 427; S. v. Spruill, 225 N.C. 356, 34 S.E. 2d 142. *59 No reversible error has been made to appear, hence the verdict and judgment will he upheld. No error.