State v. Funderburk , 60 N.C. App. 777 ( 1983 )

299 S.E.2d 822 (1983)

STATE of North Carolina
v.
Henrietta FUNDERBURK.

No. 8220SC669.

Court of Appeals of North Carolina.

February 15, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert R. Reilly, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant-appellant.

WEBB, Judge.

Defendant's only contention on appeal is that there was not sufficient evidence that a dangerous weapon was used to submit a charge of armed robbery to the jury. G.S. 14-87 provides in part:

"(a) Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another ... shall be guilty of a Class D felony."

The defendant argues, relying on State v. Alston, 305 N.C. 647, 290 S.E.2d 614 (1982), that all the evidence shows that the pistol used in the robbery would not fire and could not, as a matter of law, be held to be a dangerous weapon. Assuming the evidence showed the gun would not fire, we believe Judge Mills properly submitted armed robbery to the jury. Alston merely requires, in cases like this one, that the jury be instructed on common law robbery. The weapon used did not have to be a firearm to be a life-threatening weapon. It was a metal object and Jackie Meadows struck Lelia Funderburk with it, giving her a black eye. In State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971) our Supreme Court held that a blackjack could be a dangerous weapon. In that case the victim was struck by a blackjack but was not so seriously injured that he could not repel the robber. We believe a pistol used as a club could be as dangerous as a blackjack.

Judge Mills instructed the jury "in determining whether an air pistol was dangerous to the life of Lelia Funderburk, you would consider the nature of the pistol, and the manner in which Jackie Meadows used it or threatened to use it." We believe this part of the charge correctly instructed the jury as to how they were to consider the pistol as a possible dangerous weapon. For cases from other jurisdictions which hold that a pistol used as a club may be a dangerous weapon, see People v. Ward, 84 Cal. App. 2d 357, 190 P.2d 972 (1948); People v. Trice, 127 Ill.App.2d 310, 262 N.E.2d 276 (1970); Boyles v. State, 46 Wis. 2d 473, 175 N.W.2d 277 (1970).

No error.

BECTON and PHILLIPS, JJ., concur.