STATE of North Carolina
v.
Ronald Dwaine CARNES and Richard Allen Carter.
No. 19.
Supreme Court of North Carolina.
November 10, 1971.*237 Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.
Robert J. Sapp, Winston-Salem, for defendants appellants.
BOBBITT, Chief Justice.
Three assignments of error were brought forward by both defendants. Two relate to the admission of evidence and one relates to the judge's charge. An additional assignment of error is brought forward by Carnes and relates solely to him.
Each defendant assigns as error the admission in evidence of the .38 pistol and of *238 testimony that it was loaded. He contends the pistol pointed at Mrs. Stroud when defendants were robbing her was a .32 and therefore evidence as to the loaded .38 found by Officer Lloyd when defendants were arrested was irrelevant.
The evidence shows the loaded .38 pistol was found beside the white Toyota less than half an hour after the robbery and at a location two miles from the Li'l General Food Store. It was found on the same occasion when the officers found the .32 pistol and a box of .32 bullets in the glove compartment, Mrs. Stroud's handbag on the back seat, bottles of wine and champagne from the Li'l General Food Store in the Toyota and bills and coins in the pockets of defendants.
If defendants, on the occasion of the robbery, had a loaded .38 pistol available for use in case their felonious venture "backfired," this would seem a relevant circumstance even though no necessity arose for the display or use of the loaded.38 pistol. Relevant or not, this evidence constituted an insignificant part of the State's case. The overwhelming evidence of defendants' guilt dispels any suggestion that prejudice resulted from the admission in evidence of the .38 pistol and of testimony that it was loaded.
Each defendant assigns as error the admission in evidence of the bills and coins found in defendants' pockets. Defendants direct attention to the discrepancy between the aggregate of the bills and coins so found and the amount allegedly taken from the Li'l General Food Store and to the failure to identify the money in defendants' possession as bills and coins taken from the Li'l General Food Store. In view of the time, place and circumstances of the arrest of defendants, the fact they had bills and coins in their possession would seem relevant. We perceive no prejudicial error in the admission of the bills and coins and the testimony relating thereto.
As to each defendant, the court instructed the jury they could return one of only two possible verdicts: "either guilty as charged in the bill of indictment or not guilty." Each defendant assigns as error the court's failure to instruct the jury that they might find him "guilty of some lesser degree of the offense charged: common law robbery, attempted robbery, assault with a deadly weapon, or simple assault." The assignment is without merit.
G.S. § 15-169 provides: "On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character." (Our italics.)
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."
G.S. § 15-169 and G.S. § 15-170 are applicable only when there is evidence tending to show that the defendant may be guilty of a lesser offense. State v. Jones, 249 N.C. 134, 139, 105 S.E.2d 513, 516 (1958), and cases cited; State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481, 488 (1969). "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." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954); State v. Williams, supra.
*239 In the present case, the State's evidence, which showed a completed robbery of Mrs. Stroud by defendants at gunpoint, was positive and unequivocal as to each and every element of the crimes charged in the bills of indictment. There was no evidence that would warrant or support a finding that either defendant was guilty of a lesser included offense. Hence, the court's instructions were proper.
There remains for consideration the additional assignment of error by Carnes. The record discloses the following pertinent facts: Defendants were arrested on September 11, 1970. Each requested the assignment of counsel; and, upon findings that each was an indigent, Chief District Court Judge Abner Alexander appointed Robert H. Sapp, Esq., to represent them. Preliminary hearings were scheduled for September 21, 1970. On September 21, 1970, Sammie Chess, Jr., Esq., appearing before Judge Alexander in district court, stated that he had been retained as counsel for Carnes on September 18, 1970; that he had numerous cases in other courts that week; and that, because of insufficient time to prepare the case, he was not in position to try it at that time. Thereupon, Mr. Chess moved for leave to withdraw as counsel. Judge Alexander allowed this motion and ordered that Mr. Sapp proceed as counsel for both defendants notwithstanding Carnes stated he did not want Mr. Sapp to represent him.
A motion by Mr. Sapp that the preliminary hearings be deferred was denied. The preliminary hearings were held as scheduled. The record is silent as to what occurred at the preliminary hearings except that Judge Alexander found probable cause as to each defendant and bound him over to the Superior Court of Forsyth County. At the preliminary hearings before Judge Alexander and later at trial in the superior court, both defendants were represented by Mr. Sapp, their court-appointed counsel.
In his brief, Carnes asserts that "it is probable that said attorney (Chess) would have remained as his attorney for the course of the trial" if the request for postponement of his preliminary hearing had been granted. This contention is pure speculation. Nothing in the record indicates any attempt was made to procure the services of Mr. Chess as counsel for Carnes in the superior court.
The record fails to show that Carnes was prejudiced in any way because he was represented by Mr. Sapp rather than by Mr. Chess at the preliminary hearing to determine whether the evidence was sufficient to support a finding of probable cause as to Carnes's guilt of armed robbery as charged in the warrant. Seemingly, both defendants were represented by their court-appointed counsel at the preliminary hearings and at trial in the superior court as effectively as the State's evidence and defendants' lack of evidence would permit.
Accordingly, the verdicts and judgments will not be disturbed.
No error.