State v. HicksAnnotate this Case
84 S.E.2d 545 (1954)
241 N.C. 156
STATE v. Marshall Norman HICKS.
Supreme Court of North Carolina.
November 24, 1954.
*546 Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Charles G. Powell, Jr., Raleigh, Member of Staff, for the State.
Mullen, Holland & Cooke, Gastonia, for defendant, appellant.
*547 BOBBITT, Justice.
Is there error in the charge on account of the instructions requiring the jury to return a verdict of guilty of common law robbery or a verdict of not guilty? This is the determinative question on this appeal.
The statute bearing directly upon the factual situation disclosed by the evidence is G.S. § 15-169, which reads as follows:"§ 15-169. Conviction of assault, when included in charge.On the trial of any person for rape, or any felony whatsoever, when the crime charged includes 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 indicted, if the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character."
No need arises to restate definitions of the crime of robbery. State v. Sipes, 233 N.C. 633, 65 S.E.2d 127; State v. Lunsford, 229 N.C. 229, 49 S.E.2d 410; State v. Bell, 228 N.C. 659, 46 S.E.2d 834. The notable fact here is that the crime of robbery ex vi termini includes an assault on the person. State v. Holt, 192 N.C. 490, 135 S.E. 324. Moreover, the bill of indictment upon which defendant was tried charges in express terms that the defendant assaulted Abernathy and by means thereof robbed him.
The question posed is whether the evidence brings this case within the rule of State v. Holt, supra, and State v. Lunsford, supra, or within the rule of State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34, and State v. Bell, supra; for under G.S. § 15-169 the jury may acquit of the felony and return a verdict of guilty of assault if the evidence warrants such finding. If the evidence warrants such finding, the trial judge must submit that phase of the case to the jury whether requested to do so or not. State v. Holt, supra.
In State v. Holt, supra, there was evidence tending to show that the money was paid voluntarily by the State's witness to the defendant and thereafter the alleged assault occurred. In State v. Lunsford, supra, there was evidence tending to show that the defendants took a pistol from the prosecuting witness to prevent him from harming them or some other person. In each of these cases, a new trial was ordered because of the failure of the trial judge to instruct the jury that they might find the defendant guilty of assault.
In State v. Sawyer, supra, and in State v. Bell, supra, the only evidence relating to elements of the crime charged was the State's evidence, tending to show a completed robbery. In each of these cases, the court held that the trial judge in such case was correct in requiring the jury to return a verdict of guilty of robbery as charged or a verdict of not guilty. Hence, the verdicts and judgments were sustained.
The distinction is this: 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.
Applying the rule to the facts of this case, we find that the defendant's evidence is silent as to what, if anything, occurred in the Abernathy house upon return from the Lincolnton trip. As to this, his position is simply that he did not go into the house with Abernathy. So, with reference to the alleged assault, the only evidence *548 before the court was the testimony of Abernathy. His testimony, if accepted, was sufficient to support a verdict of guilty of an assault with a deadly weapon, to wit, a chair. There is no other evidence bearing on this phase of the case. But, conceding such assault was made by defendant on Abernathy, it does not necessarily follow that the defendant by means thereof robbed Abernathy of $1,550 or any other amount. As appears in the above statement of facts, there is evidence tending to show that Abernathy, at the time of the alleged robbery, did not have $1,550 or any such sum.
In view of such conflicting evidence, relating to an essential element of the crime of robbery, we are constrained to hold that the rule of State v. Holt, supra, and State v. Lunsford, supra, applies here, and that the jury should have been instructed that if they found from the evidence beyond a reasonable doubt that the defendant assaulted Abernathy with a chair as Abernathy's testimony tended to show, but failed to find from the evidence beyond a reasonable doubt that the defendant robbed Abernathy, they would return a verdict of guilty of an assault with a deadly weapon. Error in this respect is not cured by a verdict convicting the defendant of the more serious crime of robbery. State v. Williams, 185 N.C. 685, 116 S.E. 736; State v. Childress, 228 N.C. 208, 45 S.E.2d 42; State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130.
True, in such cases the State may contend solely for conviction of robbery and the defendant may contend solely for complete acquittal, but the trial judge, when there is evidence tending to support a verdict of guilty of an included crime of lesser degree than that charged must instruct the jury that it is permissible for them to reach such a verdict if it accords with their findings. State v. Jones, 79 N.C. 630; State v. Childress, supra.
For the error indicated, there must be a new trial; and it is so ordered.