{
  "id": 8547813,
  "name": "STATE OF NORTH CAROLINA v. OSCAR WILLIAMS",
  "name_abbreviation": "State v. Williams",
  "decision_date": "1976-10-06",
  "docket_number": "No. 7614SC323",
  "first_page": "111",
  "last_page": "113",
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      "cite": "31 N.C. App. 111"
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "189 S.E. 2d 145",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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    {
      "cite": "281 N.C. 447",
      "category": "reporters:state",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "21 N.C. App. 552",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "year": 1974,
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    {
      "cite": "205 S.E. 2d 628",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "21 N.C. App. 608",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "year": 1974,
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    {
      "cite": "84 S.E. 2d 545",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1954,
      "pin_cites": [
        {
          "page": "547"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "241 N.C. 156",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8604316
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      "year": 1954,
      "pin_cites": [
        {
          "page": "159"
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  "analysis": {
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  "last_updated": "2023-07-14T16:36:26.493722+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. OSCAR WILLIAMS"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nBy his sole assignment of error, defendant contends the court erred in failing to submit as a possible verdict an issue as to his guilt of assault with a deadly weapon. That offense, which is a misdemeanor under G.S. 14-33 (b)(1), is a lesser included offense of the felonies described in G.S. 14-32. However, the necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. \u201cThe presence of such evidence is the determinative factor. . . . Mere contention that the jury might accept the State\u2019s evidence in part and might reject it in part will not suffice.\u201d State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547 (1954).\nHere, defendant testified that the shooting was accidental and that no. intentional assault occurred. From all of the evidence there can be no doubt that if an assault occurred, it was an assault with a deadly weapon which inflicted serious injury. Therefore, there was no error in the court\u2019s failing to instruct concerning the misdemeanor of assault with a deadly weapon not inflicting serious injury. State v. Turner, 21 N.C. App. 608, 205 S.E. 2d 628 (1974); State v. Brown, 21 N.C. App. 552, 204 S.E. 2d 861 (1974). Indeed, it would have been error, though error certainly favorable to defendant, to instruct the jury on the misdemeanor offense. See State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145 (1972).\nAlthough no question has been raised by appellant concerning the form of the judgment entered in this case, we note that the judgment as contained in the record before us recites that defendant has \u201cbeen found guilty of the offense of assault inflicting serious injury,\u201d which is a misdemeanor. Thus, the recital in the judgment would not support the eight year prison sentence imposed. However, the record also clearly shows that the verdict as actually returned by the jury was that the defendant was found guilty of assault with a deadly weapon inflicting serious injury, a felony which would warrant the imposition of the eight year sentence. In order that the judgment may be made consistent with the verdict as it was actually rendered, this case is remanded to the Superior Court in Durham County. That court will cause the defendant and his counsel to appear before it, and, after making due inquiry, shall correct the recitation in the judgment so as to make it consistent with the verdict as actually rendered.\nRemanded for correction of judgment.\nChief Judge Brock and Judge Arnold concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Associate Attorney Daniel C. Oakley for the State.",
      "Bryant, Bryant, Drew & Cribb, P.A., by Lee A. Patterson II, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. OSCAR WILLIAMS\nNo. 7614SC323\n(Filed 6 October 1976)\n1. Assault and Battery \u00a7 16\u2014 assault with deadly weapon inflicting serious injury \u2014 necessity for instruction on assault not inflicting serious injury\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injuries where all the evidence tended to show that, if an assault occurred, it was an assault with a deadly weapon which inflicted serious injury, the trial court did not err in failing to instruct the jury concerning the misdemeanor of assault with a deadly weapon not inflicting serious injury.\n2. Criminal Law \u00a7 137\u2014 verdict and judgment inconsistent \u2014 remand for correction of judgment\nWhere the verdict recited in the judgment was \u201cguilty of the offense of assault inflicting serious injury\u201d but the verdict as actually returned by the jury was that defendant was found guilty of assault with a deadly weapon inflicting serious injury, the case is remanded for correction of the judgment to make it consistent with the verdict.\nAppeal by defendant from Braswell, Jvdge. Judgment entered 25 November 1975 in Superior Court, Durham County. Heard in the Court of Appeals 31 August 1976.\nDefendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injuries. He pled not guilty. The State presented evidence to show that on the morning of 13 July 1975 defendant went to the home of Margaret Stewart and demanded she pay him $30.00 which he claimed she owed him. He said to her, \u201cYou don\u2019t believe I will kill you, do you?\u201d She replied that she did believe that he would. Defendant then shot her with a pistol, the bullet hitting her in the forehead and causing her to bleed. She was taken to the hospital, where the bullet was removed from her scalp. She remained at the hospital from approximately 10:00 until 3:00 in the afternoon, at which time she went home. She returned to the hospital on two other occasions for treatment of her wound. At the time of the trial she still had recurring headaches, which were characterized by severe sharp pain.\nDefendant testified and denied that he said, \u201cYou don\u2019t believe I will kill you.\u201d He testified he had said, \u201cYou don\u2019t believe I will hurt you.\u201d He testified he did not point the pistol at Miss Stewart, he just pulled the pistol out and it went off.\nThe court submitted the case to the jury under instructions that they might return one of three possible verdicts as follows: (1) guilty of assault with a deadly weapon with intent to kill inflicting serious injury; or (2) guilty of assault with a deadly weapon inflicting serious injury; or (3) not guilty.\nThe jury returned verdict finding defendant guilty of assault with a deadly weapon inflicting serious injuries. From judgment sentencing him to prison for a term of eight years, defendant appealed.\nAttorney General Edmisten by Associate Attorney Daniel C. Oakley for the State.\nBryant, Bryant, Drew & Cribb, P.A., by Lee A. Patterson II, for defendant appellant."
  },
  "file_name": "0111-01",
  "first_page_order": 139,
  "last_page_order": 141
}