State v. Hicks
| Decision Date | 24 November 1954 |
| Docket Number | No. 505,505 |
| Citation | 241 N.C. 156,84 S.E.2d 545 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Marshall Norman HICKS. |
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.
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:
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,...
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State v. Foster
...that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.' State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954). Accord, State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969). Thus the court erred in submitting the lesser included offe......
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Hagans v. State
...(1982); People v. Johnson, 409 Mich. 552, 297 N.W.2d 115 (1980); State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954); State v. Cook, 319 N.W.2d 809 Other courts, however, take the position that it is more appropriate for the parties to dec......
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...187 S.E.2d 706, 714 (1972) (emphasis in original). Such conflicts may arise from evidence introduced by the State, State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954), or the defendant. They may arise when only the State has introduced evidence. Peacock, 313 N.C. 554, 330 S.E.2d 190; William......
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