dissenting: The evidence against the defendant was to the effect that the defendant, with Vance Mangum and Swannie Council, was brought to trial upon an indictment in the ordinary fox-m for the homicide of Willie Bellamy. The Solicitor asked only for a verdict of manslaughter against these defendants. Upon this chai-ge the jury acquitted Vance Mangum and Swannie Council and convicted Gordon Watkins of an assault with a deadly weapon.
C. S., 4639, is as follows: “On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for *695any term now allowed by law in eases of conviction when the indictment was originally for the assault of a like character.” S. v. Hunt, 128 N. C., at p. 586; S. v. Williams, 185 N. C., at p. 688. The defendant was convicted of “an assault with deadly weapon.” This has been permissible since act of 1885, chap. 68, which is C. S., 4639, supra, if the evidence shall warrant such finding — which is not questioned in this case.
The defendants all had charge of the convicts, sentenced to work upon the public roads of Wake County, either as guards or otherwise. The State’s evidence tended to show that the defendant, Willie Bellamy, was sentenced to work upon the public roads and was assigned to work at Camp No. 5. He was carried to this camp the afternoon of Monday, 21 July, and was put to work the following morning. The weather was hot and Bellamy, though a stout-appearing man, was evidently unaccustomed to hard labor in the hot sun. In consequence of his failure to work properly on the outside, he was given only bread and water for his supper that night and the same thing for breakfast Wednesday morning. On Wednesday he was brought back to the camp from working on the roads about noon and the county physician, Dr. E. W. Wilkerson, was called to see him. The doctor prescribed certain medicine and advised that he be kept in the next day. Eriday morning he was carried out to the roads to work and when brought in that night, ate the usual rations. Watkins, the defendant, inquired about this and said that Bellamy did not work much and then put him in the sweat-box. The next morning, Saturday, he was given only bread and water and carried out to work, notwithstanding Dr. Wilkerson had told them to be easy with him the next few days, according to the defendant’s own admission. The defendant, on cross-examination, testified: “Although the doctor had tali me he w[as mighty hot and vtery tender I put him in. the sweat-box with shackles on and the chain locked down to the staple on the -floor. Blankets were in there, but I did not see if he could reach them for that was the steward’s job. I have never made the statement that his hands were not locked behind him on Eriday night. On Saturday morning I took him from the dark cell and gave him his hands. He went out Saturday morning and worked about two hours and about ten o’clock I went down to where he was and found him lying in the shade. I knew he was the man who Dr. Wilkerson had told me to go easy with for three or four days, and I confined him in the sweat-box in the middle of the day with another man. After Bellamy had been in the sweat-box for some time Mr. Thompson told me that he appeared to be sick. I found him lying with his face down. I sent for some water and poured on him and unchained him. I turned him over and when I put the water on him he said ‘It feels good.’ I thought he was playing with me; I *696handcuffed him to find out to give bim a chance to get up, he got up and turned around. I found that something was wrong with him and in such condition that I sent for the doctor. He was later brought out of the sweat-box by Mr. Thompson and put in the shade. Mr. Thompson came to my quarters and asked if he could take him out. I came out in the yard and saw them bringing him out.” He was kept this way in the sweat-box all night.
While at work Saturday morning he was taken sick and brought in at noon. Notwithstanding his sickness, he was given only bread and water and confined in the sweat-box. The sweat-box was located in an open field about 40 or 50 yards from any trees. It was built out of oak timber about 1% inches thick, 3% feet wide, 6 feet high and 1 feet long. There was an opening around the top that had a wire screen on it and there was a big crack in the right-hand corner, at the entrance to the door. The roof was of boards and tar paper. It did not have any tin roof at that time. After he had been thus put in the sweat-box, in the middle of an exceedingly hot day, he grew so much worse that the doctor was sent for and he was carried to St. Agnes Hospital in Raleigh, where he died that night. When he was carried to the hospital, his temperature was 110 and he was unconscious. The only bruise that was found upon him at that time, was a scratched place {¡¡cross his nose, 1% inches long' and % of an inch wide. It appears that this wound was caused by the defendant, Watkins, striking him at noon, Saturday, with a pair of handcuffs.
Ed. Perry, testified, in part: “I was a prisoner at Camp No. 5 during week of July 21st to 26th. On Saturday when we got to the camp and got to the wash basin he (Bellamy) tried to drink some water from the wash basin. Capt. Gordon (Watkins) knocked it out of his hand and asked him what he was trying to do. He hit him on the nose with a pair of handcuffs. Capt. Vance went up behind him and knocked him on the ground and they carried him to the dark cell and I did not see him no more.”
This appeal is narrowed down to one question' — under the facts and circumstances of this case did the “handcuffs” constitute a deadly weapon? The court below, after reciting the contentions of the State in accordance with the evidence as above set forth, charged the law of criminal negligence, manslaughter and the following: “An assault is an attempt to do a corporate hurt to another; it is unlawful physical force applied to another and an assault, as defined to you, when made with an instrument such as a pair of handcuffs, would constitute in law an assault with a deadly weapon. An attempt to do a corporate hurt to another without the use of anything other than the human person is in law a simple assault.”
*697In S. v. Collins, 30 N. C., at p. 412, 413, the court below left it to the jury to say “Whether a knife two inches and a half long was a deadly weapon.” On appeal this Court held this was so as a matter of law.
In S. v. Huntley, 91 N. C., at p. 620, is the following: “Then what is a deadly weapon? It must be an instrument used, or that may be used, for the purpose of offense or defense capable of producing death. Some weapons are per se deadly; others, owing to the manner in which they are used, become deadly. A gun, a pistol, or dirk-knife, is of itself deadly; a small pocket knife, a walking cane, a switch of the size of a woman’s finger, if strong and tough, may be made a deadly weapon if the aggressor shall use such instrument with great or furious violence, and especially, if the party assailed should have comparatively less power than the assailant, or be helpless and feeble .” (Italics mine.)
In S. v. Archbell, 139 N. C., at p. 539, it is said: “An instrument which might be harmless upon a strong man, may become deadly when used upon a frail and delicate woman.” S. v. Beall, 170 N. C., at p. 766; S. v. Hefner, 199 N. C., 778.
In S. v. Smith, 187 N. C., at p. 470, Stacy, J., writing for a unanimous Court, said: “Any 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. Archbell, 139 N. C., 537; S. v. Sinclair, 120 N. C., 603; S. v. Norwood, 115 N. C., 789.” (Italics mine.)
Webster’s New International Dictionary defines “handcuff” as follows : “A metal ringlike fastening which can he locked around the wrist, usually connected by a chain or bar with one on the other wrist.” The Century Dictionary gives a picture of the metal handcuff with the key and defines it as follows: “A shackle or fastening for the hand consisting of a divided metal ring placed about and locked upon the wrist; a manacle. Handcuffs are used in pairs, one for each wrist, the two being connected by a short chain or jointed bar.”
In the present case, the defendant’s own testimony was to the effect that the doctor told defendant “to go easy with him for three or four days.” “Although the doctor had told me he was mighty hot and very tender I put him in the ‘sweat-box’ with shackles on and the chain locked down to the staple on the floor.” He was left in this sweat-box all Friday night. On Saturday, 26 July, he was taken from the “dark cell.” He had been in camp since Monday evening, 21 July, working in extremely hot weather. About the middle of Saturday, the same day he was “confined” in the sweat-box with another man, defendant found *698bim lying with bis face down. Defendant “unchained” bim and poured some water on bim. Tbe prisoner Bellamy said: “It feels good.” Tbat night tbe prisoner died about 11:30 o’clock, a half hour after reaching tbe hospital they “took bis temperature and it went to tbe top of tbe thermometer at 110 ... be was unconscious.”
Ed. Perry testified tbat when Bellamy, tbe prisoner, got to the wash basin tbat Saturday morning be tried to drink some water from tbe wash basin, no doubt caused by tbe overpowering thirst caused from bis fever. Defendant hit him,on the¡ nose with a pair of handcuffs. Tbe bruise found upon bim was a scratched place across bis nose 1% inches long and % of an inch wide. It is a matter of common knowledge tbat handcuffs are of metal, it is so defined in tbe dictionaries. Everybody who has bad any experience in tbe courts or elsewhere knows what it is without it being produced on trial. In fact tbe defendant did not request tbe court below to charge tbat under tbe facts and circumstances of this case it was not a deadly weapon. From its use on a prisoner weakened by fever, shackled and manacled all night before and tbe other evidence of bis depleted condition tbe judge in tbe court below thought from tbe circumstances of its use tbat it was a deadly weapon, and as was said by Stacy, J., in tbe Smith case, supra, any instrument which is likely to produce death or great bodily harm under tbe circumstances of its use is properly denominated a deadly weapon.
■ Tbe position of tbe main opinion in my judgment is technical in tbe extreme. Tbe record of defendant’s conduct and bis own testimony shows reckless, inhuman, conduct to tbe prisoner — weakened by being manacled and shackled, and placed in tbe sweat-box and worked in tbe hot summer sun, and then struck by defendant with tbe handcuffs when seeking to quench bis feverish thirst by even trying to drink out of a wash basin. In less than twelve hours after this assault tbe prisoner was dead, with a fever at 110. I think defendant has been rightly convicted by a jury of bis own county.
Mr. Elibu Root, a great lawyer and statesman, said: “Every lawyer knows tbat tbe continued reversal of judgments, tbe sending of parties to a litigation to and fro between tbe trial courts and tbe appellate courts, has become a disgrace to tbe administration of justice in tbe United States. Everybody knows tbat tbe vast network of highly technical rules of evidence and procedure which prevails in this country serves to tangle justice in tbe name of form. It is a disgrace to our profession. It is a disgrace to our law and a discredit to our institutions.” This statement is perhaps too radical, but it should be a warning.
Tbe language in tbe dissenting opinion of Stacy, C. J., in S. v. Strickland, ante, 630, is most applicable in tbe present case: “Even in *699criminal prosecutions, where, for obvious reasons, matters of procedure are required to be observed with greater particularity than in civil actions, bills and warrants are no longer subject to quashal ‘by reason of any informality or refinement,’ C. S., 4625. Many cases have been upheld in the face of far more grievous defects than the one here alleged. S. v. Beal, 199 N. C., 278; Jennette v. Hovey, 182 N. C., 30, 108 S. E., 301. . . . The case turns on a Lilliputian point made Brohding-nagian. That is all there is in it. Why debate it further ? Gui Bono?"