{
  "id": 8547366,
  "name": "STATE OF NORTH CAROLINA v. THOMAS HOWELL BUCHANAN",
  "name_abbreviation": "State v. Buchanan",
  "decision_date": "1975-12-17",
  "docket_number": "No. 7529SC695",
  "first_page": "163",
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  "last_updated": "2023-07-14T22:58:46.500479+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Parker and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS HOWELL BUCHANAN"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant excepted to and assigns as error the following portion of the court\u2019s final mandate to the jury:\n\u201cNow, members of the jury, in connection with the second issue, you will recall the definitions which the court earlier gave to you on assault with a deadly weapon and so forth. So the court instructs you that if you find from the evidence and beyond a reasonable doubt that the defendant, Thomas Howell Buchanan, on or about this 16th day of October, 1974, did hit the prosecuting witness, Thomas M. Bryant, with this night stick, as alleged in the bill of indictment, and that as a result thereof, the proximate result thereof, the defendant inflicted serious injuries on the person of the said Thomas M. Bryant, not resulting in his death, then you so being satisfied of these elements beyond a reasonable doubt, would return a verdict of guilty of assault with a deadly weapon inflicting serious bodily injury and you would return your verdict into open court in those words, that is \u2018guilty as to the second issue,\u2019 submitted to you.\u201d\nDefendant argues that the foregoing instruction is erroneous and prejudicial because it invades the province of the jury to determine whether the nightstick used by the defendant was a \u201cdeadly weapon,\u201d and that the judge violated G.S. 1-180 by clearly expressing an opinion that the nightstick was in fact a deadly weapon. The State, citing State v. Smith, 187 N.C. 469, 121 S.E. 737 (1924), and State v. Parker, 7 N.C. App. 191, 171 S.E. 2d 665 (1970), argues that since the court could declare the nightstick in question to be a deadly weapon as a matter of law, the instruction complained of was not error.\nIn State v. Parker, supra, citing State v. Smith, supra, this court held that the trial court did not err in declaring as a matter of law that a steak knife with \u201ca sharp, sawtooth blade approximately four and one-half inches long with a keen point and a handle approximately four inches long,\u201d when used as a knife was a deadly weapon per se.\nIn State v. Smith, supra, at 470, our Supreme Court said:\n\u201cAny instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. S. v. Craton, 28 N.C., p. 179. The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself. S. v. Archhell, 139 N.C., 537; S. v. Sinclair, 120 N.C., 603; S. v. Norwood, 115 N.C., 789.\nWhere the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly within the foregoing definition is one of law, and the Court must take the responsibility of so declaring. S. v. Sinclair, supra. But where it may or may not be likely to produce fatal results, according to the manner of its use, or 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; Krchnavy v. State, 43 Neb., 337.\u201d\nThe bill of indictment charges the defendant with a felonious assault with a deadly weapon \u201cto wit a night stick.\u201d Throughout the evidence the weapon is referred to as a nightstick, and in the testimony of the defendant\u2019s wife a \u201cbilly stick.\u201d Although the alleged deadly weapon was introduced into evidence, there is no verbal description in the record of its length, breadth, and weight, nor was it sent up to this court as an exhibit as in the case of Parker, supra. Apparently, the trial judge felt that the question of whether the nightstick was a deadly weapon was a fact to be determined by the jury, for he instructed the jury, after defining a deadly weapon, that \u201cthe alleged deadly character of the weapon is one of fact to be determined by you, the jury, so it is for you to say, members of the jury, whether the night stick used under the circumstances of its use was a deadly weapon. . . .\u201d\nWe agree with the defendant that the instruction challenged by this assignment of error removed from the jury\u2019s consideration the question of whether the nightstick was a deadly weapon and amounted to a declaration by the court that the nightstick was a deadly weapon as a matter of law. Under the circumstances here presented, we cannot say that \u201cthe alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion. . . .\u201d Smith, supra.\nFor the reasons stated, the defendant is entitled to a new trial.\nNew trial.\nJudges Parker and Arnold concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edrrdsten by Associate Attorney Milton E. Ragland, Jr., for the State.",
      "Swain and Leake, by Robert S. Swain and Joel Stevenson for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS HOWELL BUCHANAN\nNo. 7529SC695\n(Filed 17 December 1975)\nAssault and Battery \u00a7 15\u2014 instructions \u2014 nightstick as deadly weapon\nIn a prosecution for assault with a deadly weapon, a policeman\u2019s nightstick, with intent to kill inflicting serious injury, the trial court erred in giving the jury an instruction which removed from the jury\u2019s consideration the question of whether the nightstick was a deadly weapon and which amounted to a declaration by the court that the nightstick was a deadly weapon as a matter of law.\nAppeal by defendant from Friday, Judge. Judgment entered 7 January 1975 in Superior Court, McDowell County. Heard in the Court of Appeals 21 November .1975.\nThe defendant, Thomas Howell Buchanan, was charged in a bill of indictment, proper in form, with assaulting Officer Tommy M. Bryant with a deadly weapon, to wit a \u201cnightstick,\u201d with intent to kill inflicting serious injury. \u2022\nUpon the defendant\u2019s plea of not guilty, the State offered evidence tending to show the following:\nOfficer Tommy M. Bryant, with the Marion Police Department, was on duty in the early morning hours of 16 October 1974, when he stopped defendant\u2019s van on a routine check at about 1:15 a.m. As Officer Bryant got out of his car, he was cursed and assaulted by the defendant who struck Bryant with his fist. A scuffle ensued, and the defendant grabbed Bryant\u2019s nightstick out of the ring on his belt and hit Bryant several times over the head and across the chest. The defendant threatened to kill Bryant and as they were scuffling for Bryant\u2019s pistol, Officer Jack D. Causby arrived and apprehended the defendant. As a result of the assault, Bryant received a cut over his eye and a four-inch cut on the top of his head which required hospitalization for treatment.\nThe defendant testified that when he was stopped he got out of his van, and as he walked toward Bryant he said: \u201c[W]hat in the hell are you stopping me for again.\u201d Bryant did not answer but went for his nightstick. The defendant then hit Bryant with his fist, knocking him down, because the defendant said he \u201cknew [Bryant] was going to hit [him]. . . .\u201d As they scuffled, the defendant took the nightstick away from Bryant and hit him with it. They then agreed to separate; but as they separated, Bryant went for his pistol and the defendant grabbed him again. As they wrestled on the ground, Officer Causby intervened and broke up the fight.\nFrom a verdict of guilty of assault with a deadly weapon inflicting serious injury and a judgment imposing a prison sentence of twenty-four to forty-eight months, defendant appealed.\nAttorney General Edrrdsten by Associate Attorney Milton E. Ragland, Jr., for the State.\nSwain and Leake, by Robert S. Swain and Joel Stevenson for defendant appellant."
  },
  "file_name": "0163-01",
  "first_page_order": 191,
  "last_page_order": 194
}
