{
  "id": 8552709,
  "name": "STATE OF NORTH CAROLINA v. WILLIE ROBERT STEVENSON",
  "name_abbreviation": "State v. Stevenson",
  "decision_date": "1968-11-13",
  "docket_number": "No. 6826SC408",
  "first_page": "46",
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  "last_updated": "2023-07-14T16:33:22.618564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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    "judges": [
      "Mall\u00e1Rd, C.J., and Campbell, J., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIE ROBERT STEVENSON"
    ],
    "opinions": [
      {
        "text": "MORRIS, J.\nThe defendant's sole assignment of error relates to the failure of the court to charge the jury on the lesser included offenses of armed robbery; to wit: common law robbery, assault with a deadly weapon, or assault.\nG.S. 15-170 provides:\n\u201cUpon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.\u201d\nThe statute does not compel the trial court to charge on the lesser included offense where the evidence is such that the jury could not find that such lesser crime was committed.\n\u201cThe 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\u2019s 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 aocept the State\u2019s evidence in part and might reject it in part will not suffice.\u201d State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545.\nThe recent case of State v. McLean, 2 N.C. App. 460, 163 S.E. 2d 125, is on \u201call fours\u201d with the present case. There, the State\u2019s evidence clearly described an armed robbery. The defendant\u2019s evidence showed that he was in another place when the robbery occurred. Campbell, J., speaking for this Court said:\n\u201cG.S. 15-170 permits the conviction of a defendant of the crime charged in the bill of indictment \u2018or of a less degree of the same crime.\u2019 This statute, however, does not make mandatory the submission to the jury of a lesser included offense where the indictment does not charge such offense and where there is no evidence of such offense.\n* * *\nIt not only is unnecessary, but it is undesirable for a trial judge to give instructions on abstract possibilities unsupported by evidence.\u201d\nIn the present case the State\u2019s evidence tends to establish that a robbery with a knife was committed. The knife was plainly described at the trial by the prosecuting witness. The defendant\u2019s evidence tends to establish that there was not a robbery, but that the prosecuting witness loaned him the money. There was no evidence upon which a conviction of common law robbery, assault with a deadly weapon, or assault could have been sustained.\n\u201cIf the jury believed the testimony in the case under review, ... it was its duty to convict the defendants of robbery with firearms because all of the evidence tended to show that such offense was committed upon the prosecuting witness, ... as .alleged in the indictment. There was no testimony tending to establish the commission of an included or lesser crime. The evidence necessarily restricted the jury to the return of one of two verdicts . . . namely, a verdict of guilty of robbery with firearms ... or a verdict of not guilty. It follows that the court did not err in failing to instruct the jury that they might acquit the defendants of the crime of robbery with firearms charged in the indictment in question and convict them of a. lesser offense.\u201d State v. Bell, 228 N.C. 659, 46 S.E. 2d 834; as quoted in State v. McLean, supra.\nState v. LeGrande, 1 N.C. App. 25, 159 S.E. 2d 265, is in accord with this decision. The trial court did not commit error when it failed to charge on the lesser included offenses of armed robbery.\nAffirmed.\nMall\u00e1Rd, C.J., and Campbell, J., concur.",
        "type": "majority",
        "author": "MORRIS, J."
      }
    ],
    "attorneys": [
      "Robert F. Rush for defendant appellant.",
      "Attorney General T. W. Bruton by Deputy Attorney General Harry W. McGalliard for the State."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIE ROBERT STEVENSON\nNo. 6826SC408\n(Filed 13 November 1968)\n1. Criminal Law \u00a7 115\u2014 instructions on lesser degrees of crime\nG.S. 15-170, which provides that a defendant may be convicted of the crime charged in the indictment or of a less degree of the same crime, does not compel tlie trial court to charge on the lesser included offense where the evidence is such that the jury could not find that such lesser crime was committed.\n\u00a35. Robbery \u00a7 5\u2014 instructions \u2014 submission of lesser degree of armed robbery\nWhere the State\u2019s evidence tends to establish that a robbery with a knife was committed on the prosecuting witness, and the defendant's evidence tends to establish that there was no robbery but that the prosecuting witness loaned him the money, there is no evidence to sustain a conviction of common law robbery, assault with a deadly weapon or assault, and the trial court is not required to charge on these lesser included offenses of armed robbery.\nAppeal from Hasty-, J., 8 July 1968 Schedule \u201cC\u201d Session, Mecic-leNbueg Superior Court.\nThe defendant was tired on a bill of indictment charging him with the felony of robbery with firearms or other dangerous weapons; to wit, a knife whereby the life of Jonathan Wayne Phillips was endangered and threatened. The defendant, through his attorney, entered a plea of not guilty. After the evidence was heard the jury returned a verdict of guilty and a sentence was imposed of not less than five nor more than seven years in the State Prison. The defendant appeals from this verdict.\nAt the trial the State offered evidence by Jonathan Wayne Phillips to the effect that he was first introduced to the defendant on 17 March 1968. They met at the Morehead Bowling Center in Charlotte at approximately 8:15 p.m. From the Bowling Center they went to a place called Joe\u2019s A\u2019Go Go Club and stayed there approximately one hour and fifteen minutes. They then returned to the Bowling Center and stayed there until approximately 11:45 p.m. At this time they went to Phillips\u2019 car so that Phillips could take the defendant home. Phillips gave this account of the robbery:\n\u201c. . . Bobby Stevenson told me to pull the car over to the side of the road. I asked him \u2018what for?\u2019 and he didn\u2019t give me an explanation. He then said \u2018pull over\u2019 again and at this time I pulled over and stopped and came to a complete stop. I came to a complete stop on Bradford Drive. I turned on the dash light overhead and he said, \u2018Wayne, I want your money,\u2019 and I said, T am not going to give it to you.\u2019 About that time I saw a little knife about six or seven inches overall length with a small, white, pearl handle. It was about one inch in diameter and one-half inch thick. It had about 2%- or 3-inch blade on it. Bobby Stevenson had the knife. He grabbed my shirt collar and stuck the knife right at my throat and said,. T want your money.\u2019 He stuck it about one-half inch away from my throat and said, \u2018I want your money,\u2019 and I said, \u2018All right,, you can have it.\u2019\n* * **\nI was willing to give the defendant the money with that knife up to my throat, but I would not have been willing to give it to him without the knife up to my throat. I gave the money to him because I wanted him to get the knife away from my throat and get out of the car.\u201d\nThe defendant took the stand and testified in his own behalf. His account of the alleged robbery is as follows:\n\u201cI live on Edgewood, and when he stopped, I asked him if he would loan me some money and he said he would let me have twelve dollars. I said that would be O.K., so I got out and shook his hand and told him I would be back down at More-head the following day, which was on Sunday. I got him to let me out about a block away from my home because I was afraid to go home where my mother was because she does not approve of drinking. . . .\n* \u00ab tt\nI did not have any weapon or knife on me and I have never owned a pearl-handled knife of two or three inches or four-inch knife.\u201d\nRobert F. Rush for defendant appellant.\nAttorney General T. W. Bruton by Deputy Attorney General Harry W. McGalliard for the State."
  },
  "file_name": "0046-01",
  "first_page_order": 66,
  "last_page_order": 70
}