State v. Strickland , 4 N.C. App. 105 ( 1969 )

Brock, J.

The State offered evidence which tended to show that the defendants used a pocketknife in effecting the alleged robbery. Neither of the defendants offered evidence. Without recounting the circumstances of the use of the pocketknife, we feel it is sufficient for present purposes to discuss only the instructions upon which the trial judge submitted the case to the jury.

The trial judge did not rule that the pocketknife described by the State was a dangerous weapon; he submitted that question to the jury for its determination. Having done so, it would therefore have been possible, under the court’s instructions, for the jury to have failed to find that the described pocketknife was a dangerous weapon. It follows then that it was incumbent upon the trial judge to submit the lesser offense of common law robbery to the jury; this he was requested by the defendants to do and refused. This refusal we hold to be error.

The error of failure to submit to the jury the question of guilt of the lesser included offense is not cured by a verdict convicting the defendants of the higher offense. State v. Jones, 264 N.C. 134, 141 S.E. 2d 27; State v. Calloway, 1 N.C. App. 150, 160 S.E. 2d 501.

There are other assignments of error which may have merit, but, since they probably will not reoccur, we refrain from discussing them.

Trial De Novo.

Campbell and MoRRis, JJ., concur.