State v. Jackson ( 1987 )

355 S.E.2d 224 (1987)

STATE of North Carolina
v.
Robert L. JACKSON.

No. 8626SC1052.

Court of Appeals of North Carolina.

May 5, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Thomas G. Meacham, Jr., Raleigh, for State.

Asst. Public Defender Todd H. Fennell and Public Defender Isabel Scott Day, Charlotte, for defendant-appellant.

ARNOLD, Judge.

Defendant contends that the trial court erred by failing to instruct the jury on the lesser included offense of common law robbery because the hammer was not found to be a dangerous weapon as a matter of law. We agree.

Common law robbery is a lesser included offense of armed robbery. State v. Smallwood, 78 N.C.App. 365, 337 S.E.2d 143 (1985). It is error to refuse to submit common law robbery to the jury where the evidence does not compel a finding that the weapon allegedly used is a dangerous weapon as a matter of law. Id.

In the present case, the trial judge properly left the question of whether the hammer was a dangerous weapon to the jury. In her charge to the jury, the trial judge stated, "In determining whether a hammer was dangerous to the life of Officer Moore, you would consider the nature of the hammer, the manner in which the defendant used it or threatened to use it, and the size and strength of the defendant as compared to Officer Moore." Since the trial judge submitted the determination of the hammer's dangerousness to the jury, she clearly did not conclude that the hammer was a dangerous weapon as a matter of law.

The evidence in the present case did not compel a finding that the hammer was a dangerous weapon. Therefore, we hold that the trial court erred in refusing to instruct the jury on the lesser included offense of common law robbery.

Inasmuch as our decision resolves this appeal, we need not address defendant's remaining assignments of error.

New trial.

MARTIN and GREENE, JJ., concur.