State v. Jackson , 27 N.C. App. 675 ( 1975 )

219 S.E.2d 816 (1975) 27 N.C. App. 675

STATE of North Carolina
v.
Haywood JACKSON.

No. 7519SC591.

Court of Appeals of North Carolina.

December 3, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Thomas M. Ringer, Jr., Raleigh, for the State.

William G. Pfefferkorn and Beirne Minor Harding, Winston-Salem, for defendant appellant.

ARNOLD, Judge.

We reject defendant's argument that he was denied his constitutional right to a speedy trial. His trial was almost nine months following arrest. He made no motion for a speedy trial, and there is no showing that any delay was purposeful or oppressive, or that it could have been avoided by reasonable effort on the part of the State. State v. Frank, 284 N.C. 137, 200 S.E.2d 169 (1973).

Defendant contends that the trial court erred in failing to charge the jury on the lesser included offense of common law robbery. We agree. In an armed robbery prosecution where there is no other evidence of a weapon, and the robbery victim is not sure whether defendant actually had a weapon, it is error for the trial judge to fail to charge on the lesser offense of common law robbery. State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954); State v. Smith, 24 N.C.App. 316, 210 S.E.2d 266 (1974).

Since the case goes back for a new trial we need not consider the remaining assignments of error.

New trial.

BRITT and VAUGHN, JJ., concur.