State v. Scales

Jun 27, 1973
No. 7318SC312
Versions:18 N.C. App. 562
197 S.E.2d 278
1973 N.C. App. LEXIS 1938
BROCK, Judge.

Defendant, assigns as error that the trial judge instructed the jury that defendant could be found guilty by merely finding that she was present at the time the robbery occurred. We find, however, the court was considerably more specific than suggested by defendant. The trial judge clearly pointed out that defendant would have to be acquiescing and assisting by her presence, or helping in some way in the commission of the robbery. The charge of the court must be read as a whole. This assignment of error is overruled.

Defendant assigns as error the trial court’s definition of common law robbery. We do not quote the portion of the charge objected to, but point out that the definition is the same as the definition given in State v. McWilliams, 277 N.C. 680, 178 S.E. 2d 476. Also, the trial judge pointed out and explained each of the essential elements which are required to be found in order to convict one of the offense of common law robbery. This assignment of error is overruled.

Defendant assigns as error that the trial judge failed to submit to the jury the lesser included offenses of larceny from the person and simple assault. It is not proper for the trial *565judge to charge the jury on a lesser included offense unless there is some evidence from which a commission of such lesser included offense can be found. State v. Wrenn, 279 N.C. 676, 185 S.E. 2d 129. If the State’s evidence is believed, the only offense for consideration is the offense of common law robbery. If the defendant’s evidence is believed she was two blocks, or some distance, away when Lowery struck Thompson. In this case there is no evidence of the commission of a crime of less degree by defendant. This assignment of error is overruled.

In our opinion, defendant received a fair trial free from prejudicial error.

No error.

Judges Morris and Parker concur.