Section 4214 of tbe Consolidated Statutes is in these words: “Any person wbo assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony and shall be punished by imprisonment in tbe State prison or be worked on tbe county roads for a period not less than four months nor more than ten years.”
Tbe essential elements of tbe offense therein denounced are (1) an assault (2) with a deadly weapon (3) with intent to kill and (4) tbe infliction of a serious injury (5) not resulting in death.
An assault is an offer or attempt by force or violence to do injury to tbe person of another. While every battery includes an assault every assault does not include a battery; but an assault inflicting serious injury necessarily implies a battery, which is tbe unlawful application of force to tbe person of- another by tbe aggressor himself, or by some substance which bo puts in motion.
Shotguns and pistols ex vi termini import their deadly character, and tbe blackjack described by tbe witnesses may appropriately be classed among weapons which are likely to produce death or great bodily barm. S. v. Collins, 30 N. C., 407; S. v. West, 51 N. C., 505.
That there is evidence of an intent to kill there can be no doubt. Dock Hefner not only declared bis purpose to take Barringer’s life; be admonished bis companions and allies to perpetrate tbe deed. All tbe defendants were acting in concert. Tbe record, then, discloses ample evidence of an assault by tbe defendants with deadly weapons and with intent to kill.
Tbe defense is founded upon two propositions: It is contended, in tbe first place, that tbe victim of tbe assault suffered only superficial injuries and none which can reasonably be deemed “serious” in contemplation of law. Considered in tbe light of tbe previous decisions of this Court, tbe injuries inflicted by tbe assault cannot be classified as superficial or trivial, or, indeed, as free from tbe gravest possibilities. In cases involving tbe question of “serious damage” or “serious injury” this Court has laid stress on tbe fact that tbe person assaulted suffered great bodily pain. In S. v. Roseman, 108 N. C., 765, it was held that *781serious damage bad been done by an assault on a woman witb a wbip wbicb cut into ber flesb; in S. v. Shelly, 98 N. C., 673, by an assault wbicb bad stunned tbe victim, addled bis brain, and injured bis eyes; and in S. v. Huntley, 91 N. C., 617, by an assault causing physical pain wbicb was “severe for a day or two and more or less severe for several days,” altbougb tbe Court seems to bave considered also tbe mental suffering of tbe injured party, wbo was tbe assailant’s wife.
In tbe present case tbe evidence tends to establish tbe fact that tbe defendants assaulted tbe officer witb such violence as to leave him bruised and wounded and to deprive him of consciousness, and then carried him from tbe garage to a vacant lot two hundred yards away and left him there in tbe grass and weeds, probably under tbe impression that bis death was a matter of moments. To say that such physical injury was not serious would be altogether inconsistent witb former decisions dealing witb tbe question. In tbe cases last cited tbe crucial term was “serious damage” as used in tbe statute relating to tbe criminal jurisdiction of justices of tbe peace (Code, 892; Eevisal, 1427; C. S., 1481) ; but in S. v. Earnest, 98 N. C., 740, “serious damage” and “serious injury” were considered as synonymous terms. At any rate, as suggested in the State’s brief, in enacting sections 1481 and 4214 of tbe Consolidated Statutes tbe General Assembly did not bave in mind tbe distinction recognized in civil actions between "damnum” and “injuria."
In tbe second place tbe defendants contend that bis Honor committed error by instructing tbe jury that “serious injury” means not only injury to tbe party assaulted, but “anything that would cause a serious breach of tbe peace.” Similar language was used in S. v. Huntley, supra; but in S. v. Strickland, 192 N. C., 253, it was held that an inaccurate definition of tbe term will not be held for reversible error if upon all tbe evidence it clearly appears that serious injury was inflicted. To warrant reversal, error must be prejudicial. S. v. Smith, 164 N. C., 475; S. v. Reagan, 185 N. C., 710.
Tbe trial court was correct in bolding that tbe action should not be dismissed. If tbe injury was not serious or there was no intent to kill, as contended by tbe defendants, there remained undisputed evidence of an assault witb deadly weapons. S. v. Earnest, supra.
No error.