STATE of North Carolina
v.
Oscar WILLIAMS.
No. 7614SC323.
Court of Appeals of North Carolina.
October 6, 1976.*669 Atty. Gen. Rufus L. Edmisten by Associate Atty. Daniel C. Oakley, Raleigh, for the State.
Bryant, Bryant, Drew & Crill, P. A. by Lee A. Patterson, II, Durham, for defendant-appellant.
PARKER, Judge.
By his sole assignment of error, defendant contends the court erred in failing to submit as a possible verdict an issue as to his guilt of assault with a deadly weapon. That offense, which is a misdemeanor under G.S. 14-33(b)(1), is a lesser included offense of the felonies described in G.S. 14-32. However, 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. . . . Mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954).
Here, defendant testified that the shooting was accidental and that no intentional assault occurred. From all of the evidence there can be no doubt that if an assault occurred, it was an assault with a deadly weapon which inflicted serious injury. Therefore, there was no error in the court's failing to instruct concerning the misdemeanor of assault with a deadly weapon not inflicting serious injury. State v. Turner, 21 N.C.App. 608, 205 S.E.2d 628 (1974); State v. Brown, 21 N.C.App. 552, 204 S.E.2d 861 (1974). Indeed, it would have been error, though error certainly favorable to defendant, to instruct the jury on the misdemeanor offense. See: State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972).
Although no question has been raised by appellant concerning the form of the judgment entered in this case, we note that the judgment as contained in the record before us recites that defendant has "been found guilty of the offense of assault inflicting serious injury," which is a misdemeanor. Thus, the recital in the judgment would not support the eight year prison sentence imposed. However, the record also clearly shows that the verdict as actually returned by the jury was that the defendant was found guilty of assault with a deadly weapon inflicting serious injury, a felony which would warrant the imposition of the eight year sentence. In order that the judgment may be made consistent with the verdict as it was actually rendered, this case is remanded to the Superior Court in Durham County. That court will cause the defendant and his counsel to appear before it, and, after making due inquiry, shall correct the recitation in the judgment so as to make it consistent with the verdict as actually rendered.
Remanded for correction of judgment.
BROCK, C. J., and ARNOLD, J., concur.