State v. Black , 21 N.C. App. 640 ( 1974 )

205 S.E.2d 154 (1974) 21 N.C. App. 640

STATE of North Carolina
v.
Ricky BLACK.

No. 7420SC201.

Court of Appeals of North Carolina.

June 5, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Donald A. Davis, Raleigh, for the State.

William H. Helms, Monroe, for defendant.

BROCK, Chief Judge.

The prosecuting witness in this case is an eighty-one year old woman who, on the date in question, was conducting business alone in her establishment when defendant, a five feet-nine inch seventeen year old male, accompanied by a fifteen year old male, entered the shop and examined the knife with the blade opened. There is evidence to the effect that Mrs. Carr was then assailed by both males who pummeled her head, inflicted a laceration of the ear, and then fled the premises with the knife.

The State's evidence tends to show that defendant took, or attempted to take, Mrs. Carr's knife by the use or threatened use of the knife whereby the life of Mrs. Carr was endangered or threatened, and that the taking, or attempt to take, was with intent to permanently deprive Mrs. Carr of her knife and to convert the knife to defendant's own use. This evidence tends to show a violation of G.S. § 14-87. Defendant does not argue to the contrary. He argues only that the trial court committed prejudicial error by failing to submit to the jury the lesser offense of common law robbery.

It is true that in a prosecution for robbery with a dangerous weapon, the accused may be acquitted of the crime charged and convicted of a lesser offense included in the offense charged, such as common law robbery, if there is evidence from which the commission of such lesser offense can be found. But the trial court is not required to submit to the jury the question of a lesser offense, included in that charged, where there is no evidence to support such a verdict. State v. Owens, 277 N.C. 697, 178 S.E.2d 442. The mere contention that the jury might accept the State's evidence in part and might reject it in part is not sufficient to require submission to the jury of a lesser offense. State v. Bailey, 278 N.C. 80, 178 S.E.2d 809.

The State's evidence tended to show robbery or attempted robbery with the use or threatened use of the knife, a dangerous weapon.

The defendant's evidence tends to show that no robbery was committed or attempted. It tends to show commission of the offense of an assault on Mrs. Carr by one Michael Duncan, who had accompanied defendant. However, defendant's evidence tends to show defendant did not participate in the commission of that offense.

If the State's evidence is believed, defendant committed the offense of robbery with a dangerous weapon, or attempted robbery with a dangerous weapon. If defendant's evidence is believed, he committed no offense. There was no evidence to support a verdict of guilty of common law robbery. The mere contention that the jury might accept the State's evidence that defendant robbed, or attempted to rob, Mrs. Carr, but might reject the State's evidence that defendant used or threatened to use the knife does not require the submission of the offense of common law robbery to the jury. State v. Bailey, supra. Under the State's evidence, if a robbery were committed or attempted, it was committed or attempted with the use or threatened use of the knife. The jury was properly instructed that they must be satisfied beyond a reasonable doubt of the existence of each element of the crime, which included the use or threatened use of the knife, or it would be the jury's duty to acquit defendant.

The trial court was correct in refusing to submit to the jury the question of defendant's guilt of common law robbery.

No error.

PARKER, J., concurs.

BALEY, Judge (dissenting):

In my view there is evidence to support a verdict for the lesser offense of common law robbery.