State v. Thompson ( 1980 )

WELLS, Judge.

Prior to the trial court’s charge to the jury, defendant submitted a written request for a charge on the lesser included offense of misdemeanor assault. The court denied the request and instructed upon common law robbery only. Defendant assigns error to the court’s refusal to charge on misdemeanor assault, arguing that the evidence warranted such an instruction. We do not agree. Common law robbery is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Lawrence, 262 N.C. 162, 163, 136 S.E. 2d 595, 596-97 (1964); see also State v. Brown, 300 N.C. 41, 47, 265 S.E. 2d 191, 195 (1980). The crime of common law robbery includes an assault on the person. State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954). However, as stated in Hicks, 241 N.C. at 159-60, 84 S.E. 2d at 547:

The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. Hence, there is no such necessity if the State’s evidence tends to show a completed robbery and there is no conflicting evidence relating to elements of the crime charged.

In the present case State’s evidence tended to show the taking of Earl’s money by defendant against Earl’s will by violent means. State’s evidence was not open to the interpretation that defendant committed only the lesser included offense of assault. Defendant specifically denied assaulting Earl, but admitted taking Earl’s money. On the basis of this evidence the court did not err by failing to instruct the jury on the lesser included offense of misdemeanor assault.

Defendant has also assigned as error the court’s summarization of his evidence in its charge to the jury that defendant was “flabbergasted” when June Bug began hitting Earl and that on the day following the alleged robbery Earl and his brothers “accosted” defendant but that “strangely nothing came of it.” Defendant contends that in so charging the jury the trial judge indicated to the jury that he gave little if any weight to defendant’s evidence. We find the statements objected to by defendant to be sufficiently supported by the evidence and not contrary to what defendant contended. Therefore such statements did not constitute an expression of opinion by the court. See State v. Joyner, 297 N.C. 349, 359-62, 255 S.E. 2d 390, 396-98 (1979). Defendant also contends that the trial court expressed an opinion as to the validity of defendant’s defense when it charged on the illegality of collecting a debt by the use of force. Again we find no expression of opinion since the legal issue arose on the evidence. Defendant’s own testimony tended to show that he was attempting to collect a debt owed to him by Earl’s brother at the time of the robbery of Earl.

In defendant’s trial we find

No error.

Judges VAUGHN and Martin (Robert) concur.