State v. Wenrich

111 S.E.2d 582 (1959) 251 N.C. 460

STATE
v.
Edwin WENRICH and Ramon Bujan.

No. 222.

Supreme Court of North Carolina.

December 16, 1959.

Atty. Gen. Malcolm B. Seawell and Asst. Atty. Gen. Glenn L. Hooper, Jr., for the State.

Llewellyn & McKenzie, Concord, for defendants, appellants.

PER CURIAM.

In effect the trial judge instructed the jury that, as to each defendant, it should return one of two verdicts, guilty as charged in the bill of indictment or not guilty. "* * * (I)n a prosecution for robbery with firearms, (or other dangerous weapons) 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." (Parentheses ours.) State v. Bell, 228 N. C. 659, 663, 46 S.E.2d 834, 837. But the court should not submit to the jury an included lesser crime where there is no testimony tending to show that such lesser offense was committed. But where there is evidence tending to show the commission of a lesser offense the court, of its own motion, should submit such offense to the jury for its determination. State v. Holt, 192 N.C. 490, 493, 135 S.E. 324.

In the instant case the evidence was such that the jury might have returned a verdict of common law robbery, assault with a deadly weapon or simple assault. There was error in the failure to so instruct the jury.

New trial.