State v. Gilliland

WEBB, Judge.

The defendant assigns error to the denial of his motion to dismiss the charge of assault with a deadly weapon inflicting serious injury. He contends it should have been dismissed because there was no evidence that the defendant used a deadly weapon. No witness testified that he saw a weapon. We believe, however, there was sufficient circumstantial evidence that the defendant used a deadly weapon for the jury to so find. The State introduced evidence that the victim was severely cut. We believe the jury could infer from this that the defendant used a knife which could be found to be a deadly weapon. See 6 Strong’s N.C. Index 3d, Evidence § 21 (1978) for a definition of circumstantial evidence.

We do not believe State v. Randolph, 228 N.C. 228, 45 S.E. 2d 132 (1947); State v. Watkins, 200 N.C. 692, 158 S.E. 393 (1931); and State v. Smith, 187 N.C. 469, 121 S.E. 737 (1924), relied on by the defendant, are helpful to him. Randolph held that the weapon need not be offered in evidence. Watkins deals with the charge of the court as to how the jury determines whether a weapon is a deadly weapon. It does not deal with the question in this case, which is, whether the evidence is sufficient to be submitted to the jury. Smith deals with the question of whether a baseball bat used to kill a person is a deadly weapon as a matter of law.

The defendant’s first assignment of error is overruled.

In his second assignment of error the defendant argues that his motion for appropriate relief should have been granted. The court charged the jury as to Ronnie Mull’s right of self-defense when his wife was assaulted. After the verdict had been entered, Wanda Mull testified that she had gone through a marriage ceremony with Ronnie Mull but she was not divorced from her first husband at the time. The defendant argues that he did not receive as favorable a charge as he should have received on the right of Ronnie Mull to go to the aid of Wanda Mull. The judge *374charged the jury that Ronnie Mull was entitled “to stand his ground on behalf of his wife and to use such force as his wife would have been allowed to use.” The defendant, relying on State v. Fields, 268 N.C. 456, 150 S.E. 2d 852 (1966), argues that if the case had been tried according to the correct facts as to the relationship between Ronnie and Wanda Mull the court would not have charged that Ronnie had a right to act in self-defense of Wanda unless he reasonably believed she was being feloniously assaulted. Assuming the defendant is right as to the difference in the right of self-defense in the protection of others, we do not believe there was error in the charge in this case. Wanda Mull might not have been márried to Ronnie Mull but she was not a stranger to him. He was on his own premises and saw one he loved assaulted. We believe he was justified in going to her defense.

No error.

Judges WELLS and WHICHARD concur.