State v. Allison

184 S.E.2d 857, 280 N.C. 175, 1971 N.C. LEXIS 1114

Opinion

Per Curiam.

Defendant brings forward only one assignment of error, that the trial judge erred in failing to submit to the jury the issue of defendant’s guilt of an assault with a deadly weapon. This assignment is frivolous.

All the evidence for the State tended to show that defendant, armed with a pistol, threatened the life of Lefler and unlawfully took from him cash in excess of $900.00. All of defendant’s evidence tended to show that he committed no crime. There was no evidence which would support a verdict of guilty of an assault with a deadly weapon, a lesser offense included within the crime charged. “The presence of such evidence is the determinative factor.” State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547. Accord, State v. Jacobs, 277 N.C. 151, 176 S.E. 2d 744; State v. Williams, 275 N.C. 77, 165 S.E. 2d 481.

In the trial below we find

No error.