#### STATE v. PHELON PERRY and MODIS PERRY.

(Filed 25 September, 1946.)

1. Criminal Law §§ 52a, 78f—

To present tie question of the sufficiency of the evidence upon appeal, a motion to nonsuit should be made at the close of the State’s evidence, and exception noted upon its denial, and if defendant introduces evidence the motion should be renewed at the close of all the evidence, and if again overruled another exception should be noted, in which event the assignment of error should be based upon the second exception. G. S., 15-173.

2. Same—

An assignment of error to the refusal of the court to grant defendants’ motion of nonsuit at the close of the State’s evidence and refusal to grant similar motion made at the close of all the evidence cannot be sustained when the record fails to show an exception to the refusal of the *motion*made at the close of the State’s evidence, and further fails to show that the motion was renewed at the close of all the evidence.

S.Criminal Law § 81c (3)—

In this prosecution for assault with a deadly weapon a witness was permitted to testify as to empty shotgun shells he found at the scene the following morning. There was no evidence tending to identify the persons who fired the shots. The court, in its charge, withdrew the question of assault with guns and specifically instructed the jury that the gunshot wound suffered by prosecuting witness could not form the basis of guilt of either defendant. *Belil:*The admission of the evidence, if error, was not prejudicial.

4. Criminal Law § 81c (1)—

Appellant must not only show error but also that the alleged error was prejudicial.

5. Criminal Law § 78c—

An assignment of error must be based upon an exception entered at the trial.

6. Criminal Law § 78d (2) —

The failure of the court to restrict the admission of testimony competent for the purpose of corroboration will not be held for error when the defendant neither objects to the admission of the testimony nor requests that its admission be restricted. Rule of Practice in the Supreme Court No. 21. S. *v. Chapman,*221 N. G., 157, cited and distinguished as an exception to the general rule.

7. Criminal Law §§ 53b, 531—

The court is not required to charge upon the presumption of innocence, and an exception to the failure of the court to elaborate on this phase of the case cannot be sustained, it being incumbent upon, defendant if he desires an amplification of the charge on this subordinate feature to aptly tender request therefor.

*5318. Assault § 8d—

A “brick” bas a well defined meaning, and when thrown with force at close range may constitute a deadly weapon as a matter of law.

9. Assault § 14c—

Where the evidence tends to show an assault with a brick thrown at close range with force, it is not error for the court to limit the jury to a verdict of guilty of assault with a deadly weapon or not guilty, and to refuse to submit to the jury the question of defendant’s guilt of simple assault.

10. Same—

Where the evidence tends to show an assault with a knife, it is not error for the court to limit the jury to a verdict of guilty of assault with a deadly weapon or not guilty, and to refuse to submit to the jury the question of defendant’s guilt of simple assault.

Appeal by defendants from *Bone, J.,*at March Term, 1946, of Nash.

Criminal prosecution, tried upon indictment charging several defendants with an assault with deadly weapons upon one Henry Eatman, with intent to kill, resulting in serious bodily harm.

At the close of the State’s evidence, motion to dismiss as of nonsuit was allowed as to all the defendants except Phelon Perry and Modis Perry.

The evidence for the State tends to show that the prosecuting witness owns and operates a store and filling station near Bailey, in Nash County, North Carolina. On 19 May, 1945, the defendant Phelon Perry, accompanied by Bryce Eatman, went to this store and stayed about ten minutes. Later, the same evening, about 10 :30 o’clock, Bryce Eatman and Phelon Perry returned to the store. Phelon Perry had been drinking and the prosecuting witness requested Bryce Eatman to take Phelon Perry away. Eatman did not do so; and Phelon Perry asked a Mrs. Taylor, an employee of the prosecuting witness, to dance with him. Mrs. Taylor replied that she could not dance, Phelon Perry jerked her out of her chair and started slinging her around the dance floor. Perry was using vulgar language. Also present at this time were the wife of the prosecuting witness, Mr. and Mrs. Yance Person and Yenton Wells. The prosecuting witness asked Phelon Perry to leave the store. He did not do so and the prosecuting witness slapped Perry and with the assistance of Bryce Eatman took Perry out of the store and put him in his car. About forty minutes later Phelon Perry returned to the store accompanied by two carloads of people. He came to the door of the store with a pocketknife in his hand and started to enter. The wife of the prosecuting witness attempted to prevent him from entering. The prosecuting witness went to the door to prevent him from entering, and Phelon Perry stabbed him near the heart with the pocketknife. The wound was not a slicing cut, but a direct stab. The prosecuting witness pushed *532Pbelou Perry out of the door and threw a bottle at him. Phelon Perry left the store and returned a short time later with Rryce Eatman, Arthur Perry, Homer Perry, Modis Perry and B. Perry. When they arrived at the store, the prosecuting witness was dressing the knife wound which Phelon Perry had inflicted. He was being assisted by his wife. Modis Perry went to the door and said he was looking for “the bad man.” He then threw a brick into the store at the prosecuting witness, but did not hit him. Guns were fired about this time, and the prosecuting witness returned the fire, and both the prosecuting witness and Phelon Perry received gunshot wounds.

The evidence for the defendants consisted of the testimony of the defendants themselves.

Phelon Perry testified that the prosecuting witness cut him, jumped on him and beat him up and that he did not remember anything that happened after that. He had been drinking beer, probably five or six bottles. He did not know when he was shot in the face. He did not remember going back into the store after he was hit by a bottle. “My memory first began to come back to me when I was in the hospital in Wilson.”

Modis Perry testified that he went to the store of the prosecuting witness after he heard his brother Phelon Perry and Henry Eatman had just had some trouble. That he sat in his car in front of the store for a few minutes. When he got out of the car Phelon was on the ground and Henry Eatman was beating him. Phelon’s face was bloody, his shirt was bloody and he had a cut under his eye. “I told him to quit and leave him alone, and they didn’t, so I told him they couldn’t kill my brother, so right then I picked up a rock that was lying there; a rock or brick I picked up and throwed it at them and when I threw it, it went inside the store. . . . Henry Eatman was scuffling with my brother and I was trying to get him off of my brother. I must have missed him when I threw the brick. The brick was lying on the oil drum in front of the station. At the time I threw the brick I was about as far from Mr. Eatman' as from the witness stand to Mr. Sharpe. The reason I didn’t walk over and hit Mr. Eatman in the head with the brick was because I didn’t want to kill anybody and didn’t want to hit anybody. Just before I threw the brick I didn’t hardly have time to think. I didn’t want to hit him so I throwed it at him and missed him.”

The jury returned a verdict of guilty of an assault with a deadly weapon as to each defendant; and from the judgment pronounced thereon, the defendants appealed to the Supreme Court, assigning error.

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

*Sharpe & Pittman, Cooley & May, and O. B. Moss for defendants.*

*533Denny, J.

Tbe defendants assign as error the refusal of Ms Honor to grant their motion for judgment as of nonsuit at the conclusion of the State’s evidence and for failure to grant a similar motion lodged by the defendants at the close of all the evidence.

These assignments of error cannot be sustained. The defendants did not except to the refusal of the court to grant their motion for judgment as of nonsuit at the close of the State’s evidence. Moreover, they testified in their own behalf and did not renew their motion to dismiss at the' close of all the evidence.

A motion for judgment as of nonsuit, under G. S., 15-173, must be made at the close of the State’s evidence, exception noted, if overruled, and, if the defendant introduces evidence the motion to dismiss should be renewed at the close of all the evidence, exception again noted, if overruled; and upon appeal from the refusal to dismiss, the assignment of error should be based upon the latter exception. *S. v. Bittings,*206 N. C., 798, 175 S. E., 299; *S. v. Ormond,*211 N. C., 437, 191 S. E., 22. No such assignment of error appears on the record. Even so, we think the evidence ample to go to the jury as to both defendants.

A number of exceptions relate to the action of the court in permitting a witness for the State to testify that he examined the premises of the prosecuting witness next morning after the defendant Phelon Perry and the prosecuting witness were shot and that he found empty shotgun shells on the premises near the store building and gunshot in the building.

The defendants complain of this evidence as being highly prejudicial, since the State did not establish the identity of the persons who fired the shots or the person who shot the prosecuting witness. However, the court withdrew from the jury the question of a criminal offense being committed by the defendants by the use of guns, and instructed the jury as follows: “There is no sufficient evidence in the case against this defendant to show that he fired any shots which found their place in the body of Eatman. The evidence does not disclose who fired the shots which Eatman testified lodged in his body and, therefore, the jury could not find the defendant, Phelon Perry, guilty of an assault with a deadly weapon because of the gunshot wound received by the prosecutor, but the verdict, if arrived at by the jury, of guilty, would have to be based upon what took place at the time of the alleged cutting, that is to say, the act of cutting, which would have to form the basis of a verdict of guilty in the ease and the gunshot wound could not form the basis for the guilt of either of the defendants in this case.” Conceding that the evidence was erroneously admitted, the instruction given by his Honor relative thereto, made its admission harmless. It is not sufficient for a defendant to show mere error in the trial below. He must show that his rights were prejudiced by the error. *S. v. King,*225 N. C., 236, 34 S. E. (2d), 3; *S. v. Beal,*199 N. C., 278, 154 S. E., 604.

*534Assignment of Error No. 8 is based upon tbe failure of tbe trial judge to instruct tbe jury tbat certain testimony of one of tbe State’s witnesses was in corroboration of tbe testimony of tbe prosecuting witness. Tbe defendants cite *S. v. Chapman,*221 N. C., 157, 19 S. E. (2d), 250, as authority for tbeir contention. Tbis assignment of error is not based upon an exception entered at tbe trial below and cannot be sustained. Moreover, tbe evidence complained of was withdrawn from the consideration of tbe jury. But we discuss it because of tbe apparent misconception of tbe bolding in tbe above case. There tbe exception was to tbe refusal of tbe court, upon objection by tbe State, to permit one of the witnesses for tbe defendant to testify to statements made by tbe defendant on tbe morning following tbe alleged crime, unless it was understood tbat tbe defendant was to testify in bis own behalf. Tbe defendant agreed to testify, but even so in view of tbe State’s objection, it being admitted out of order and admissible only as corroborative evidence, it was tbe duty of tbe court to so instruct tbe jury at tbe time of its admission. But tbis is not tbe general rule. Tbe general rule is set forth in Rule 21 of the Rules of Practice in tbe Supreme Court, as follows: “Nor will it be ground of exception tbat evidence competent for some purposes, but not for all, is admitted generally, unless tbe appellant asks at tbe time of admission, tbat its purpose shall be restricted.” *S. v. Walker, ante,*458, 38 S. E. (2d), 531; *S. v. Ham,*224 N. C., 128, 29 S. E. (2d), 449; *S. v. McKinnon,*223 N. C., 160, 25 S. E. (2d), 606; *S. v. Johnson,*218 N. C., 604, 12 S. E. (2d), 278; *Beck v. Tanning Co.,*179 N. C., 123, 101 S. E., 498; *Tise v. Thomasville,*151 N. C., 281, 65 S. E., 1007; *Hill v. Bean,*150 N. C., 436, 64 S. E., 212. In tbe trial below there was neither objection to tbe admission of tbe testimony nor request for it to be limited as corroborative only.

Tbe defendants except and assign as error tbe following portion of bis Honor’s charge: “Tbe defendants have pleaded not guilty and are presumed to be innocent.”

Tbe defendants contend tbe court should have gone further and stated tbat tbe presumption of innocence surrounded tbe defendants and remained with them throughout tbe trial until tbeir guilt was established beyond a reasonable doubt by a verdict of tbe jury.

It has been held by tbis Court tbat it is not error for tbe trial judge to fail to charge tbe jury on tbe presumption of innocence. *S. v. Bowser,*214 N. C., 249, 199 S. E., 31; *S. v. Alston,*210 N. C., 258, 186 S. E., 354; *S. v. Herring,*201 N. C., 543, 160 S. E., 891; *S. v. Rose,*200 N. C., 342, 156 S. E., 916; *S. v. Boswell,*194 N. C., 260, 139 S. E., 874.

Tbe presumption of innocence is a subordinate feature of tbe cause and if tbe defendants desired an amplification of tbe charge in tbis respect, they should have so requested at tbe time. *S. v. Merrick,*171 N. C., 788, 88 S. E., 501; *S. v. Herring, supra; S. v. Boswell, supra.**535Tbe court properly charged tbe jury as to tbe burden of proof and fully defined reasonable doubt. Tbe exception cannot be sustained.

Exceptions 21 and 28 are directed to tbe action of tbe trial court in charging tbe jury that it could return one of two verdicts against tbe defendant, Modis Perry — ’guilty of an assault with a deadly weapon or not guilty. Tbe defendant contends bis Honor should have charged tbe jury that it could bring in one of three verdicts, to wit: Guilty of assault with a deadly weapon, guilty of simple assault, or not guilty.

There is no evidence of any assault on tbe prosecuting witness by Modis Perry except tbe assault with a brick. If tbe brick thrown by Modis Perry constituted a deadly weapon, because of tbe manner in which it was used, tbe defendant has no cause to complain because tbe trial judge refused to charge tbe jury that it could convict this defendant of a simple assault.

Tbe word “brick” has a well known meaning. It is defined in 11 C. J. S., p. 878, as “An artificial substitute for stone, which has been extensively used in all ages. Among builders and mechanics, a .brick is understood to be eight inches in length, four inches in width, and two inches in thickness.”

In *S. v. Lee,*6 W. W. Harr., 11 (Del.), 171 A., 195, tbe Court said: “A deadly weapon is such a weapon as is likely to produce death when used by one person against another; and a brick thrown with force and violence in close proximity to the person of another,- or used as a weapon to strike by holding it in hand, is a deadly weapon.” And in *S. v. Schumann*(Iowa), 175 N. W., 75, it is said: “It has been held that a brick is, or may be, a deadly weapon, when used in an assault. *State v. Simms,*80 Miss., 381, 31 South., 907.”

In *S. v. Watkins,*200 N. C., 692, 158 S. E., 393, *Stacy, C. J.,*speaking for the Court, said: “An 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., 165, at page 179. But where it may or may not be likely to produce such results, according to the manner of its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury. *S. v. West,*51 N. C., 505: Where the deadly character of the weapon is to be determined by the relative size and condition of the parties and the manner in which it is used/ the question is for the jury. *S. v. Archbell,*139 N. C., 537, 51 S. E., 801; *S. v. Norwood,*115 N. C., 789, 20 S. E., 712; *S. v. Huntley,*91 N. C., 621. If its character as being deadly or not depended upon the facts and circumstances it became a question for the jury with proper instructions from the court.’ *S. v. Beal,*170 N. C., 764, 87 S. E., 416. See, also, *S. v. Hefner,*199 N. C., 778; *S. v. Phillips,*104 N. C., 786, 10 S. E., 463; *S. v. Porter,*101 N. C., 713, 7 S. E., 902; *S. v. Collins,*30 N. C., 407.”

*536In the instant ease, under the eyidence, we think his Honor would have been justified in holding as a matter of law that the manner in which the defendant used the brick, it was a deadly weapon. However, the question was submitted to the jury, under the following instructions: “As to Modis Perry, ... if you should find beyond a reasonable doubt that he threw a brick in the store of Eatman with the intent to do him bodily harm, and further find that the brick was a deadly weapon under the circumstances of its use, that is, an instrument which was capable of producing death or great bodily harm under the circumstances of its use, then the defendant, Modis Perry, would be guilty of an assault with a deadly weapon, unless you find him not guilty on the principle of self-defense.”

Under our decisions, the exception cannot be sustained. *S. v. Hobbs,*216 N. C., 14, 3 S. E. (2d), 431; *S. v. Beal,*170 N. C., 764, 87 S. E., 416; *S. v. Archbell,*139 N. C., 537, 51 S. E., 801.

The defendant, Phelon Perry, also excepts and assigns as error, the refusal of the court to charge the jury that it might convict him of a simple assault. There is no evidence tending to show that Phelon Perry assaulted the prosecuting witness except when the prosecuting witness and his wife undertook to keep Perry out of their store. It was during that altercation that the defendant Phelon Perry is charged with stabbing the prosecuting witness with a pocketknife and inflicting upon him serious bodily harm.. *S. v. Hobbs, supra,*is in point and sustains the ruling of the court below. *Schenck, J.,*speaking for the Court, said: “The defendant assigns as error the court’s failure to submit to the jury the charge of a simple assault. This assignment is untenable for the reason that there is no evidence of simple assault. The State’s evidence tended to show that the assault committed upon the prosecuting witness was committed with a missile large enough, and thrown with force enough, to knock a hole 6 or 7 inches in the windshield of the truck driven by the witness. . . . ‘Where all the evidence at the trial of a criminal action, if believed by the jury, tends to' show that the crime charged in the indictment was committed as alleged therein, and there is no evidence tending to show the commission of a crime of less degree, it is not error for the court to fail to instruct the jury that they may acquit the defendant of the crime charged in the indictment and convict him of a crime of less degree. See *S. v. Ratcliff,*199 N. C., 9, 153 S. E., 605, where the statute, C. S., 4640, is construed and applied.’ *S. v. Cox,*201 N. C., 357.”

We have carefully examined the remaining exceptions and assignments of error, especially those challenging the correctness of his Honor’s charge on the question of self-defense as to both defendants, and they cannot be sustained.

In the trial below, we find

No error.