DocketNumber: No. 7126SC742
Citation Numbers: 13 N.C. App. 216
Judges: Graham, Hedrick, Mallard
Filed Date: 12/15/1971
Status: Precedential
Modified Date: 7/20/2022
Defendants contend that the trial judge committed error in charging the jury with respect to the law as to the meaning of the words “with the use or threatened use of any firearms or other dangerous implement or means.” When the charge is considered as a whole, as we are required to do, we think that the instructions of the court with respect to the law were adequate and that no prejudicial error appears.
Defendants also contend that the trial judge should have submitted to the jury the lesser included offense of assault and
“On the trial of any person for rape, or any felony whatsoever, when the crime charged includes1 an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicated, if the evidence warrants such finding . . . . ” (Emphasis added.)
In the instant case, all of the State’s evidence tended to show the commission of an armed robbery. The alibi evidence of the defendants tended to show that they were at some other place at the time of the robbery and could have committed no crime at the time and place alleged. The trial judge is not required to submit to the jury a lesser included offense unless there is evidence thereof. States v. Carnes, 279 N.C. 549, 184 S.E. 2d 235 (1971) ; State v. Terry, 278 N.C. 284, 179 S.E. 2d 368 (1971) ; State v. Smith, 268 N.C. 167, 150 S.E. 2d 194 (1966); State v. Hatcher, 9 N.C. App. 352, 176 S.E. 2d 401 (1970) ; State v. McLean, 2 N.C. App. 460, 163 S.E. 2d 125 (1968). Evidence of a lesser included offense is lacking in this case. The trial judge did not commit error in failing to instruct the jury that they could return a verdict against the defendants of assault.
No error.