State v. Martin , 6 N.C. App. 616 ( 1969 )

170 S.E.2d 539 (1969) 6 N.C. App. 616

STATE of North Carolina
v.
Joseph Steve MARTIN.

No. 6926SC523.

Court of Appeals of North Carolina.

November 19, 1969. Certiorari Denied February 3, 1970.

Atty. Gen. Robert Morgan by Trial Atty. I. B. Hudson, Jr. and Staff Atty. Howard P. Satisky, Raleigh, for the State.

James M. Shannonhouse, Jr., Charlotte, for defendant appellant.

MORRIS, Judge.

By assignments of error Nos. 1 and 2 defendant contends that it was error for the court to refuse his motion for nonsuit at the close of the State's evidence and at the close of all the evidence. Defendant does not cite pertinent authority for this position, contending only that the prosecuting witness was "obviously unreliable", because he was unwilling or unable to explain to the court and jury what he had been doing in Charlotte and why he had so much money on his person when he was not planning to make any substantial purchases. Defendant further contends that this "unreliability" along with "defendant's unequivocal denial" presents a "factual situation too conflicting to be presented the jury for consideration."

It is the function of the jury to determine the facts in the case from the evidence and it is the function of the jury to weigh the evidence, determine the credibility of the witnesses and the probative force to be given their testimony and determine what the evidence proves or fails to prove. 7 Strong, N.C.Index 2d, Trial, § 18, p. 288. There was ample evidence to be submitted to the jury. Defendant's assignments of error Nos. 1 and 2 are overruled.

Defendant's assignment of error No. 3 is addressed to the court's failure to instruct the jury on the lesser included offenses of assault with a deadly weapon and simple assault under G.S. § 15-169 and G.S. § 15-170. This failure, he contends, constitutes prejudicial error. It is true that a defendant may be acquitted of armed robbery and convicted of an included or lesser offense if a verdict for the included or lesser offense is supported by allegations of the indictment and by evidence at the trial. However, the evidence in this case tended to show that the defendant had committed armed robbery upon Cox as alleged in the indictment or that the defendant was innocent of the alleged crime. The jury was persuaded to accept the evidence of the State and find the defendant guilty as charged. This assignment of error is overruled. State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966); State v. Bell, 228 N.C. 659, 46 S.E.2d 834 (1948); State v. McLean, 2 N.C.App. 460, 163 S.E.2d 125 (1968).

Affirmed.

MALLARD, C. J., and HEDRICK, J., concur.