State v. . Revels

Seawell, J. The appellants present two questions for review: Whether the case should have been nonsuited, on the demurrers to the *36 evidence, with respect to the charge of felonious assault; and whether the court erred in its instruction to the jury, that they might, as a permissible verdict, find the defendants guilty on all counts, thus including the charge of felonious assault. The exceptions are, of course, interrelated, the propriety of the instruction depending upon the validity of the judgment overruling the demurrers. We turn our attention to that question. The appellants contend that there was no evidence of an intent to kill. They do not contend, considering the specific nature of the demurrer, that there was not evidence of (1) an assault; (2) the use of a deadly weapon; (3) the infliction of a serious injury; (4) not resulting in death. All these, however, they contend, taken together, do not engender an inference of the intent to kill; and cite S. v. Redditt, 189 N. C., 176, 126 S. E., 506; S. v. Carver, 213 N. C., 150, 195 S. E., 349; and quote from S. v. Gibson, 196 N. C., 393, 145 S. E., 772. We fear that the significance of the cited cases has escaped the defense. In all of these cases the Court was dealing with the question of presumptions; with erroneous instructions to the jury that assault with a deadly weapon inflicting serious injury not resulting in death, raised a presumption of felonious assault, or intent to kill, thus burdening the defendant with the necessity of proving his innocence of an element of the crime — the intent to kill, — which it was incumbent on the State to prove beyond a reasonable doubt. We quote from S. v. Gibson, supra: “The admission on proof of an assault with a deadly weapon, resulting in serious injury but not in death, cannot'be said, as a matter of law, on the present record, to establish a presumption of felonious intent, or intent to kill, sufficient to overcome the presumption of innocence, raised by a plea of traverse, and cast upon defendant the burden of disproving his guilt.” (Italics supplied.) This Court has never said — indeed could not say — that the circumstances attending such an assault might not afford evidence of a felonious assault, or an assault with intent to kill. Such intent may be inferred from the nature of the assault, the manner in which it is made, the conduct of the parties, and other relevant circumstances. S. v. Smith, 211 N. C., 93, 189 S. E., 175; S. v. Oxendine, 224 N. C., 825, 829, 830, 32 S. E. (2d), 648. Without cataloguing the evidence we may say that a person who uses a lethal weapon so savagely as to open a wound in the body of his unarmed victim which causes' severe hemorrhage and takes twenty-six stitches externally and three internally to close, may be held by the jury to have had a homicidal intent, although death did not ensue. S. v. Redditt, supra, is not in conflict with this view; it deals with certain presumptions which arise out of the killing and which are not otherwise present; not with inferences which might be drawn from the circumstances of the assault. Persons intending to inflict a punishment *37 short of death could have been more careful in selecting the instrument and less prodigal in its use. Fortunately the wound, serious as it was, did not cause death, but that, apparently, was not due to any restraint on the part of the assailants. There was ample evidence that the defendants acted in concert. Since there was a general verdict of guilty on all counts, and the sentences imposed are to run concurrently, we need not inquire whether the assault on the infant Baxley could be differentiated in evidentiary aspects from the other counts. S. v. Graham, 224 N. C., 347, 350, 30 S. E., 151. The demurrers to the evidence were properly overruled. Defendants’ challenge to the trial presents no sufficient reason why the result should be disturbed. On the record we find No error.