State v. Fletcher , 27 N.C. App. 672 ( 1975 )

220 S.E.2d 101 (1975) 27 N.C. App. 672

STATE of North Carolina
v.
James C. FLETCHER.

No. 7520SC574.

Court of Appeals of North Carolina.

December 3, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Sandra M. King, Raleigh, for the State.

Leath, Bynum, Kitchin & Neal by Henry L. Kitchin, Rockingham, for defendant-appellant.

MARTIN, Judge.

We have carefully reviewed the assignments of error brought forward and argued by defendant in Case No. 75CR0304 (armed robbery) and find them to be without merit. The defendant was afforded a fair trial free from prejudicial error.

Although defendant has not raised the question, an error in Case No. 75CR0302 (assault with a deadly weapon) appears on the face of the record proper and, on our own motion, we arrest judgment in that case. The defendant was convicted of armed robbery and assault with a deadly weapon. Since both offenses of which he was convicted arose out of the same occurrence, the latter is a lesser included offense of the former. "``An indictment for robbery with firearms will support a conviction of a lesser offense such as common law robbery, assault with a deadly weapon, larceny from the person, simple larceny or simple assault if a verdict for the included or lesser offense is supported by the evidence on the trial. (Citations).'" State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970). The defendant, having been convicted of armed robbery, could not be convicted of the lesser offense of assault with a deadly weapon where, as here, both offenses arose out of the same act or occurrence. The judgment on the verdict of guilty of assault with a deadly weapon should have been arrested.

The verdict of guilty of assault with a deadly weapon (No. 75CR0302) is set aside and the judgment arrested.

Armed robbery charge (No. 75CR0304)— no error.

MORRIS and PARKER, JJ., concur.