State v. Perry

18 N.C. App. 141 | N.C. Ct. App. | 1973

HEDRICK, Judge.

Defendant assigns as error the denial of his motion in arrest of judgment.

In State v. Stepney, 280 N.C. 806, 318, 185 S.E. 2d 844, 852 (1972), Justice Huskins speaking for the North Carolina Supreme Court said: See also State v. Richardson, 279 N.C. 621, 185 S.E. 2d 102 (1971).

“An assault with a deadly weapon inflicting serious injury is not a lesser included offense of armed robbery because the infliction of serious injury is not an essential ingredient of the armed robbery charge. It is only when all essentials of the lesser offense are included among the essentials of the greater offense that the law merges them into one and treats the less serious charge as a ‘lesser included offense’.”

Therefore, since a defendant may not lawfully be convicted of an offense not embraced within the offense charged in the bill of indictment, State v. Overman, 269 N.C. 453, 153 S.E. 2d 44 (1967), the judgment entered on the verdict in the present case must be arrested.

If the State is so advised, it may proceed against the defendant on a proper bill of indictment charging him with assault with a deadly weapon inflicting serious bodily injury.

Judgment arrested.

Judges Brock and Parker concur.