{ "id": 8549845, "name": "STATE OF NORTH CAROLINA v. KENNETH EUGENE ROSS", "name_abbreviation": "State v. Ross", "decision_date": "1976-11-03", "docket_number": "No. 769SC458", "first_page": "394", "last_page": "396", "citations": [ { "type": "official", "cite": "31 N.C. App. 394" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "289 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572961, 8573004, 8572983 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0728-01", "/nc/289/0728-03", "/nc/289/0728-02" ] }, { "cite": "222 S.E. 2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 11", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553622 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0011-01" ] }, { "cite": "78 S.E. 2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "238 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612615 ], "year": 1953, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0527-01" ] }, { "cite": "121 S.E. 737", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1924, "opinion_index": 0 }, { "cite": "187 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654088 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nc/187/0469-01" ] }, { "cite": "53 S.E. 228", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1906, "opinion_index": 0 }, { "cite": "141 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253943 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/nc/141/0734-01" ] } ], "analysis": { "cardinality": 336, "char_count": 5521, "ocr_confidence": 0.653, "pagerank": { "raw": 2.363690794006357e-07, "percentile": 0.7945953605789372 }, "sha256": "297f1ff58dcfb7e18c50154bee0d4270da5940abe673dc6b096151ab814f2225", "simhash": "1:8a63b7281f55f2ec", "word_count": 941 }, "last_updated": "2023-07-14T16:36:26.493722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH EUGENE ROSS" ], "opinions": [ { "text": "BRITT, Judge.\nWhile defendant argues eleven assignments of error we find only two that we think warrant discussion.\nFirst, he assigns as error the trial court\u2019s jury instruction that a shotgun is a deadly weapon. We find no merit in the assignment.\nDefendant argues that no evidence was presented tending to show that the shotgun which he allegedly pointed at Hale was loaded and that a gun is not a deadly weapon per se unless it is loaded. This argument is not persuasive. Over a period of many years, the appellate courts of this State have held that a gun or pistol is a deadly weapon per se and defendant does not cite, and our research has not revealed, any case which supports defendant\u2019s argument.\nIn State v. Atkinson, 141 N.C. 734, 53 S.E. 228 (1906), the defendant was tried on an indictment charging him with assault with a deadly weapon, a pistol. The trial court charged the jury that if the State had satisfied them beyond a reasonable doubt that the defendant pointed a pistol at the prosecuting witness, whether the pistol was loaded or not, it would be an assault and to find the defendant guilty. The Supreme Court found no error in the instruction.\nIn State v. Smith, 187 N.C. 469, 121 S.E. 737 (1924), in an opinion by Justice (later Chief Justice) Stacy, the court stated that a pistol or a gun is a deadly weapon and did not limit the statement to a loaded gun or pistol.\nIn State v. Powell, 238 N.C. 527, 531, 78 S.E. 2d 248, 251 (1953), opinion by Justice (later Chief Justice) Parker, the court declared without qualification that \u201c [a] pistol is a deadly weapon per se.\u201d\nIn State v. Reives, 29 N.C. App. 11, 222 S.E. 2d 727, cert. denied, 289 N.C. 728 (1976), this court declared without qualification that a pistol is a deadly weapon per se.\nWe hold that the trial court did not err in giving the challenged instructions.\nDefendant assigns as error the judgment entered by the trial court. He contends that the court erred in sentencing him to a fixed term when he was a \u201ccommitted youthful offender.\u201d We find no merit in this assignment.\nThe judgment provides that defendant be imprisoned for the term of one year \u201cin the custody of the Secretary of Corrections as a committed youthful offender under Article 3A Chapter 148 of the North Carolina General Statutes.\u201d While the judgment does not utilize the word \u201cmaximum\u201d or the words \u201cnot more than,\u201d we think it is clear that one year is the longest period of time that defendant can be incarcerated pursuant to the j udgment. By indicating that it is being entered pursuant to Article 3A, Chapter 148 of the General Statutes, the options of conditional release and unconditional discharge by the parole commission are adequately provided for.\nAlthough we do not discuss them here, we have carefully considered the other assignments of error brought forward and argued in defendant\u2019s brief and find that they too are without merit. We conclude that he received a fair trial, free from prejudical error, and that a valid judgment was imposed.\nNo error.\nJudges Parker and Clark concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Jerry B. Frwitt, for the State.", "Zollicoffer & Zollicoffer, by John H. Zollicoffer, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH EUGENE ROSS\nNo. 769SC458\n(Filed 3 November 1976)\n1. Assault and Battery \u00a7 5\u2014 gun \u2014 deadly weapon per se\nA gun is a deadly weapon per se, and whether or not the gun is loaded is immaterial.\n2. Infants \u00a7 10\u2014 committed youthful offender \u2014 no fixed term of imprisonment\nJudgment of the trial court providing that defendant be imprisoned for the term of one year \u201cin the custody of the Secretary of Corrections as a committed youthful offender under Article 3A, Chapter 148 of the North Carolina General Statutes\u2019\u2019 did not amount to a sentence to a fixed term when defendant was a \u201ccommitted youthful offender\u201d; rather, since the judgment indicated that it was being entered pursuant to Article 3A, Chapter 148 of the General Statutes, the options of conditional release and unconditional discharge by the parole commission were adequately provided for.\nAppeal by defendant from McLelland, Judge. Judgment entered 1 March 1976 in Superior Court, Vance County. Heard in the Court of Appeals 14 October 1976.\nDefendant was charged in separate warrants with assaults with a deadly weapon, a shotgun, on Joseph Hale and Michael Coghill. In district court he pled not guilty, was found guilty in both cases and from judgments imposing prison sentences, he appealed to superior court.\nAt his trial in superior court, where defendant again pled not guilty, the State presented evidence tending to show: On the night of 26 November 1975 Hale and Coghill were operators of an ambulance which responded to a call from the home of defendant\u2019s parents. On arriving there they found defendant\u2019s mother sitting at the kitchen table with a severe cut to her right inner elbow. While Hale and Coghill were bandaging the mother\u2019s arm, defendant and his father, who were also in the kitchen, were fighting. Defendant obtained a shotgun, pointed it at his father and at Hale and Coghill and made threats directed at Hale. After bandaging the mother\u2019s arm, Hale and Coghill removed Mrs. Ross to the ambulance and carried her to the hospital. \u25a0\nDefendant presented no evidence. The jury found him not guilty of assaulting Coghill but guilty of assault with a deadly weapon on Hale. From judgment imposing prison sentence of one year as a committed youthful offender, defendant appealed.\nAttorney General Edmisten, by Associate Attorney Jerry B. Frwitt, for the State.\nZollicoffer & Zollicoffer, by John H. Zollicoffer, Jr., for defendant appellant." }, "file_name": "0394-01", "first_page_order": 422, "last_page_order": 424 }