{
  "id": 8551579,
  "name": "STATE OF NORTH CAROLINA v. BUD ROPER",
  "name_abbreviation": "State v. Roper",
  "decision_date": "1978-12-19",
  "docket_number": "No. 7829SC774",
  "first_page": "256",
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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": "286 N.C. 191",
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      "category": "reporters:state",
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      "year": 1974,
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      "cite": "243 S.E. 2d 367",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1978,
      "pin_cites": [
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      "cite": "295 N.C. 55",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1978,
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          "page": "64"
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    {
      "cite": "51 N.C. 505",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1859,
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          "page": "509"
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  "last_updated": "2023-07-14T17:57:00.834910+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Parker and Hedrick concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BUD ROPER"
    ],
    "opinions": [
      {
        "text": "ERWIN, Judge.\nDefendant\u2019s sole assignment of error is that the trial judge failed to charge the jury on the lesser included offense of assault inflicting serious injury. He argues that whether the knife used here was a deadly weapon should have been a jury question. We do not agree.\nThe description of the knife in this case was given by the victim: \u201ca keen bladed knife or slick bladed knife\u201d and \u201c[defendant] cut me with a pocket knife.\u201d The State argues that this is sufficient to require the court to find that the knife was a deadly weapon per se.\nWhether a weapon is deadly is generally a decision for the court, State v. West, 51 N.C. 505 (1859), and \u201c[a]n instrument which is likely to produce death or great bodily harm under the circumstances of its use is properly denominated a deadly' weapon.\u201d State v. Joyner, 295 N.C. 55, 64, 243 S.E. 2d 367, 373 (1978). We believe it is clear that a \u201ckeen bladed pocketknife\u201d used under the circumstances here, that is, slapped across the victim\u2019s throat, is \u201clikely to produce great bodily harm.\u201d \u201cAn instrument . . . may be deadly or not, according to the mode of using it. . . State v. West, supra at 509. The actual effects produced by the weapon may also be considered in determining whether it is deadly. State v. West, supra. Here, the uncontradicted testimony is that the injury was an extremely serious one.\nWe find that it was the proper function of the trial court to determine that this knife was a deadly weapon per se. As a result, there was no error in the judge\u2019s failure to submit the lesser included offense of assault inflicting serious injury. The trial court need not submit a lesser included offense where there is no evidence to support such a verdict. State v. Black, 21 N.C. App. 640, 205 S.E. 2d 154, aff\u2019d, 286 N.C. 191, 209 S.E. 2d 458 (1974).\nNo error.\nJudges Parker and Hedrick concur.",
        "type": "majority",
        "author": "ERWIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Special Deputy Attorney General Myron C. Banks, for the State.",
      "Robert L. Harris, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BUD ROPER\nNo. 7829SC774\n(Filed 19 December 1978)\nAssault and Battery \u00a7 16.1\u2014 assault with deadly weapon \u2014 knife as deadly weapon \u2014instruction on lesser offense not required\nIn a prosecution for assault with a deadly weapon, the trial court properly found that a \u201ckeen bladed pocketknife\u201d slapped across the victim\u2019s throat was a deadly weapon per se and properly failed to charge the jury on the lesser included offense of assault inflicting serious injury.\nAPPEAL by defendant from Jackson, Judge. Judgment entered 18 May 1978 in Superior Court, RUTHERFORD County. Heard in the Court of Appeals 5 December 1978.\nDefendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injuries not resulting in death. Pete Rivera testified that on 26 February 1978, he had been shooting pool, and as he started to leave, \u201csomebody kicked me as I started off the porch and I turned around and said something \u2018who in hell kicked me,\u2019 or something like that and the next thing I knew I felt like a slap on my throat and seen a knife blade go by . . . and I threw my hand up to my throat and blood was coming down to my elbow.\u201d At the time he saw the knife, defendant had it. He had had no words with defendant prior to that time and did not even know him.\nBecky Clontz, who was present that evening, testified that she saw defendant slap at Rivera and that when he did, blood flew everywhere. Barbara Bowen testified that she saw the cutting and that there was no one close enough to Rivera to cut him at that time except for defendant. Dr. Bass, who treated Rivera at the hospital, testified that Rivera had an extremely severe injury to his neck, worse than any the doctor had ever encountered. The pharynx and both jugular veins were cut, \u201cand why the man didn\u2019t bleed to death, I don\u2019t know.\u201d\nDefendant testified that he was present at the scene but that he did not cut Rivera and did not know who did.\nDefendant was found guilty of assault with a deadly weapon inflicting serious injury and sentenced to six to nine years. He appeals.\nAttorney General Edmisten, by Special Deputy Attorney General Myron C. Banks, for the State.\nRobert L. Harris, for defendant appellant."
  },
  "file_name": "0256-01",
  "first_page_order": 284,
  "last_page_order": 286
}