State v. Stevenson

MORRIS, J.

The defendant's sole assignment of error relates to the failure of the court to charge the jury on the lesser included offenses of armed robbery; to wit: common law robbery, assault with a deadly weapon, or assault.

G.S. 15-170 provides:

“Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.”

The statute does not compel the trial court to charge on the lesser *49included offense where the evidence is such that the jury could not find that such lesser crime was committed.

“The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. Hence, there is no such necessity if the State’s evidence tends to show a completed robbery and there is no conflicting evidence relating to elements of the crime charged. Mere contention that the jury might aocept the State’s evidence in part and might reject it in part will not suffice.” State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545.

The recent case of State v. McLean, 2 N.C. App. 460, 163 S.E. 2d 125, is on “all fours” with the present case. There, the State’s evidence clearly described an armed robbery. The defendant’s evidence showed that he was in another place when the robbery occurred. Campbell, J., speaking for this Court said:

“G.S. 15-170 permits the conviction of a defendant of the crime charged in the bill of indictment ‘or of a less degree of the same crime.’ This statute, however, does not make mandatory the submission to the jury of a lesser included offense where the indictment does not charge such offense and where there is no evidence of such offense.
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It not only is unnecessary, but it is undesirable for a trial judge to give instructions on abstract possibilities unsupported by evidence.”

In the present case the State’s evidence tends to establish that a robbery with a knife was committed. The knife was plainly described at the trial by the prosecuting witness. The defendant’s evidence tends to establish that there was not a robbery, but that the prosecuting witness loaned him the money. There was no evidence upon which a conviction of common law robbery, assault with a deadly weapon, or assault could have been sustained.

“If the jury believed the testimony in the case under review, ... it was its duty to convict the defendants of robbery with firearms because all of the evidence tended to show that such offense was committed upon the prosecuting witness, ... as .alleged in the indictment. There was no testimony tending to establish the commission of an included or lesser crime. The *50evidence necessarily restricted the jury to the return of one of two verdicts . . . namely, a verdict of guilty of robbery with firearms ... or a verdict of not guilty. It follows that the court did not err in failing to instruct the jury that they might acquit the defendants of the crime of robbery with firearms charged in the indictment in question and convict them of a. lesser offense.” State v. Bell, 228 N.C. 659, 46 S.E. 2d 834; as quoted in State v. McLean, supra.

State v. LeGrande, 1 N.C. App. 25, 159 S.E. 2d 265, is in accord with this decision. The trial court did not commit error when it failed to charge on the lesser included offenses of armed robbery.

Affirmed.

MalláRd, C.J., and Campbell, J., concur.