State v. Davis ( 1955 )

87 S.E.2d 906 (1955) 242 N.C. 476

STATE
v.
Thomas DAVIS and Billy Cathey.

No. 651.

Supreme Court of North Carolina.

June 30, 1955.

Atty. Gen. Harry McMullan and Asst. Atty. Gen. Ralph Moody, for the State.

Elreta Melton Alexander, Greensboro, for appellants.

DENNY, Justice.

The defendants' assignment of error No. 42 is based on their exception to the failure of the court to charge the jury with respect to the lesser degrees of the crime charged. It is provided in G.S. § 15-169 as follows: "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 * * *."

It is further provided in G.S. § 15-170 that, "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." State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130; State v. Burnette, 213 N.C. 153, 195 S.E. 356; State v. Robinson, 188 N.C. 784, 125 S.E. 617.

An indictment for robbery with firearms will support a conviction of a lesser offense such as common law robbery, assault wtih a deadly weapon, larceny from the person, simple larceny or simple assault, if a verdict for the included or lesser offense is supported by the evidence on the trial. State v. Bell, 228 N.C. 659, 46 S.E.2d 834; State v. Holt, 192 N.C. 490, 135 S.E. 324.

The evidence adduced in the trial below was in such sharp conflict as to what happened at the time of the alleged robbery with respect to the use of firearms and otherwise, that the defendants were entitled to have the trial judge instruct the jury with respect to the lesser degrees of the crime charged. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; State v. Holt, supra; State v. Efird, 186 N.C. 482, 119 S.E. 881; State v. Williams, 185 N.C. 685, 116 S.E. 736; State v. Merrick, 171 N.C. 788, 88 S.E. 501; State v. Nash, 109 N.C. 824, 13 S.E. 874. If the jury should believe the evidence of the defendants, then whatever money Clarence Cousins took from Fred Fuller was not taken with the use or threatened use of firearms. Moreover, the fact that the defendants were found guilty as charged did not cure the error of the court in failing to submit to the jury the question of the defendants' guilt of less degrees of the crime charged. State v. McNeill, 229 N.C. 377, 49 S.E.2d 733.

The defendants have 48 additional assignments of error, several of which are not without merit. Even so, the errors complained of may not occur upon another trial and no useful purpose would be served by considering them on this appeal.

The defendants are entitled to a new trial, and it is so ordered.

New trial.