State v. McLean , 2 N.C. App. 460 ( 1968 )

163 S.E.2d 125 (1968) 2 N.C. App. 460

STATE of North Carolina
v.
Jasper McLEAN.

No. 6812SC308.

Court of Appeals of North Carolina.

September 25, 1968.

Nance, Collier, Singleton, Kirkman & Herndon, by James R. Nance, Fayetteville, for defendant appellant.

T. W. Bruton, Atty. Gen., and Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

CAMPBELL, Judge.

The defendant assigns as error the charge of the trial judge wherein he stated:

"Under the law and evidence in this case, you are to return one of two possible verdicts; that is to say, a verdict of guilty as charged of armed robbery, or a verdict of not guilty, depending upon how you shall have found the facts to be."

The defendant asserts that it was incumbent upon the trial judge, as provided by G.S. § 15-170, to instruct the jury that the defendant could be convicted of a lesser included offense of common law robbery.

G.S. § 15-170 permits the conviction of a defendant of the crime charged in the bill of indictment "or of a less degree of the same crime." This statute, however, does not make mandatory the submission to the jury of a lesser included offense where the indictment does not charge such offense and where there is no evidence of such offense.

"It is true that in a prosecution for robbery with firearms, an accused may be acquitted of the major charge and convicted of an included or lesser offense, such as common law robbery, or assault, or larceny from the person, or simple larceny, if a verdict for the included or lesser offense is supported by allegations of the indictment and by evidence on the trial." State v. Bell, 228 N.C. 659, 46 S.E.2d 834.

It not only is unnecessary, but it is undesirable for a trial judge to give instructions on abstract possibilities unsupported by evidence. The rule is succinctly stated by Bobbitt, J., in State v. Hicks, 241 N.C. 156, 84 S.E.2d 545:

"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. Mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice."

In the instant case the evidence on behalf of the State establishes that a robbery with firearms was in fact committed. This is uncontradicted by the defendant's evidence, and as stated by Ervin, J., in State v. Bell, supra:

"If the jury believed the testimony in the case under review, * * * it was its duty to convict the defendants of robbery with firearms because all of the evidence tended to show that such offense was committed upon the prosecuting witness, * * * as alleged in the indictment. There was no testimony tending to establish the commission of an included or lesser crime. The evidence necessarily restricted the jury to the return of one of two verdicts * * * namely, a verdict of guilty of robbery with firearms * * * or a verdict of not guilty. It follows that the court did not err in failing to instruct the jury that they might acquit the defendants of the crime of robbery with firearms charged in the indictment in question and convict them of a lesser offense."

To the same effect, see State v. LeGrande, 1 N.C.App. 25, 159 S.E.2d 265.

Affirmed.

MALLARD, C. J., and MORRIS, J., concur.