#### STATE v. MADGE HARRISON.

(Filed 23 May, 1945.)

1. Assault and Battery § 7d—

In a criminal prosecution for assault with a deadly weapon, a charge by the court that a commonly used implement, such as a hoe or ice pick, is per se a deadly weapon, with no evidence to disclose its weight, size, length, or other description, is reversible error.

2. Same'—

Where a deadly weapon is referred to in an indictment, its use being a necessary element of .the offense charged, it might be an act of proper precaution to procure another bill containing a description of the implement allegedly used, such as its weight, size and material out of which made.

Appeal by defendant from Olive, Special Judge, at January Term, 1945, of Guileobd (High Point Division).

The defendant was tried upon a bill of indictment charging that she “did unlawfully, wilfully, maliciously and feloniously assault, beat and wound one Irene Gibbs with intent to kill, with a deadly weapon, to wit, a certain ice-pick to the great damage and serious injury of the said Irene Gibbs in the following manner, to wit: Stabs on or about the body, contrary to the statute in such case made and provided, and against the peace and dignity of the State.”

*235Tbe evidence tended to show tbat tbe defendant, Madge Harrison, and tbe prosecuting witness, Irene Gibbs, engaged in a fight wherein tbe defendant stabbed with an ice pick tbe prosecuting witness about tbe body several times. Tbe defendant contended tbat sbe stabbed tbe witness in ber own proper self-defense as tbe witness bad broken into ber room in tbe early morning and was assaulting tbe defendant and committing depredations in ber room. Tbe prosecuting witness contended tbat sbe entered tbe room of tbe defendant because sbe (witness) beard tbe voice of ber (witness’) busband in defendant’s said room, and entered said room as witness’ busband left it, and tbat a figbt ensued between tbe witness and defendant in wbicb figbt glass in tbe door and elsewhere was broken, and tbe defendant stuck tbe witness several times with an ice pick.

Tbe jury returned a verdict “Guilty of Assault with Deadly Weapon” and from judgment of imprisonment, predicated upon tbe verdict, tbe defendant appealed, assigning errors.

Attorney-General McMullan and, Assistant Attorneys-General Rhodes and Moody for the State.

Silas B. Casey and Rwpert T. Pickens for defendant Harrison, appellant.

Schenck, J.

Tbe court charged tbe jury, inter alia: “Second, it (tbe assault) must be with a deadly weapon, and tbe Court instructs you tbat an ice pick such as described would be a deadly weapon, as a matter of law; . . .” This excerpt from tbe charge is made tbe basis for an exceptive assignment of error, and we are constrained to bold tbat such assignment must be sustained.

Barnhill, J., in S. v. Davis, 222 N. C., 178, 22 S. E. (2d), 274, writes for tbe Court tbat a charge to tbe effect tbat an assault with a hoe would be an assault with a deadly weapon was in error, since such a charge assumes or bolds as a matter of law tbat a boe is per se a deadly weapon.

Tbe Davis case, supra, was similar to tbe instant case in many ways, particularly in tbat tbe evidence in both cases failed to disclose tbe weight, size, length or other description of tbe implement alleged, and in neither case was produced to be viewed by either judge or jury. Tbe question as to whether tbe implement alleged was a deadly weapon should have been submitted to tbe jury under proper instructions. S. v. Watkins, 200 N. C., 692, 158 S. E., 393, and cases there cited.

It may not be amiss to call attention to tbe fact tbat tbe deadly weapon in tbe bill of indictment is simply designated as “a certain ice pick” without further description, and tbat it might be an act of proper precaution to procure another bill of indictment containing a description of *236the implement alleged to have been used, such as its weight, size, and material out of which made.

For the reasons stated there must be a

New trial.