31 N.C. App. 590 | N.C. Ct. App. | 1976
Defendant first assigns error to the failure of the trial court to charge on the offense of assault with a deadly weapon.
Assault with a deadly weapon is a lesser included offense of the crime of robbery by firearm. State v. Faulkner, 5 N.C. App. 113, 168 S.E. 2d 9 (1969). The trial judge is required to charge on a lesser included offense only when there is evidence to support such verdict. State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149 (1971). When the State’s evidence tends to show an offense, there is no conflicting evidence relating to elements of the offense, and the only offense committed, if any, was the one charged, the court is not required to instruct on lesser included offenses. State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954).
Defendant contends that he was entitled to an instruction on assault with a deadly weapon on the basis of an incident which occurred as he and Porter, the prosecuting witness, were walking to Jones’ house. At that time defendant allegedly hit Porter on the shoulders with a shotgun. This incident was separated in time and space from the one for which defendant was indicted. The incident on which the indictment was based occurred at least fifteen minutes after the alleged assault with the gun and occurred inside Porter’s house. Porter and Davis had separated, and Porter was alone when Davis and Wilson entered his house and robbed him. We know of no requirement that the State must try a defendant on every possible offense that he has ever committed against the prosecuting witness. Defendant’s reliance upon Hicks for this proposition is misplaced.
The evidence in the record tends to show a completed armed robbery. There was no conflicting evidence on the ele
Defendant’s other assignment of error was not argued in his brief and is deemed abandoned. N. C. R. App. P. 28(a).
We note that although both defendants appealed, there were two records on appeal. This is in violation of Rule 11(d), N. C. Rules of Appellate Procedure, and counsel personally will be taxed with the costs of printing the unnecessary record on appeal.
No error.
