State v. McLeod

194 S.E.2d 861 (1973) 17 N.C. App. 577

STATE of North Carolina
v.
Lonnie McLEOD, Jr.

No. 7311SC249.

Court of Appeals of North Carolina.

March 14, 1973.

Atty. Gen., Robert Morgan by Ralf F. Haskell, Associate Atty. Gen, for the State.

A. B. Harrington, III, Sanford, for defendant appellant.

VAUGHN, Judge.

Defendant objects to the introduction of a knife into evidence, arguing that the weapon had no direct connection with the alleged robbery and was inadmissible. The record discloses that, at the time it was introduced, the knife was described as a facsimile of the knife used in the alleged robbery. The knife was used by the victim of the robbery to illustrate and explain his testimony and the jury was so instructed. No prejudicial error has been made to appear from the introduction of the knife in evidence.

Defendant next complains that the court erred in allowing testimony tending to show that articles of clothing were missing from the store as a result of the robbery when the indictment is silent as to such items. There is no merit to this argument.

Defendant contends the court erred in sustaining the State's objection to a question on cross-examination of a State's witness. Defendant asked the witness whether testimony elicited from a prior State's witness was inconsistent with evidence presented by this witness. The question was improper. A conclusion concerning the consistency or inconsistency of various bits of testimony is a matter for the jury to determine and not for the witness. See State v. Vestal, 278 N.C. 561, 180 S.E.2d 755.

Defendant also challenges the court's failure to instruct the jury that they might return a verdict of guilty of some lesser degree of the crime charged. The necessity for such an instruction arises only when there is evidence from which the jury could find that such included crime of lesser degree was committed. State v. Carnes, 279 N.C. 549, 184 S.E.2d 235. The defendant's evidence tended to show that he committed no crime while the State offered evidence to the effect that defendant committed a completed robbery by the use of a dangerous weapon. There was no evidence that would warrant a finding that defendant was guilty of any other included offense of lesser degree. This and defendant's other assignments of error to the charge of the court are overruled.

No error.

BROCK and GRAHAM, JJ., concur.