State v. Strickland

Court of Appeals of North Carolina

State v. Strickland

165 S.E.2d 693, 4 N.C. App. 105, 1969 N.C. App. LEXIS 1449

CourtCourt of Appeals of North Carolina

DecidedFebruary 26, 1969

DocketNo. 6920SC118

StatusPublished

This text of 165 S.E.2d 693 (State v. Strickland) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Strickland, 165 S.E.2d 693, 4 N.C. App. 105, 1969 N.C. App. LEXIS 1449 (N.C. Ct. App. 1969).

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Opinion

Brock, J.

The State offered evidence which tended to show that the defendants used a pocketknife in effecting the alleged robbery. Neither of the defendants offered evidence. Without recounting the circumstances of the use of the pocketknife, we feel it is sufficient for present purposes to discuss only the instructions upon which the trial judge submitted the case to the jury.

The trial judge did not rule that the pocketknife described by the State was a dangerous weapon; he submitted that question to the jury for its determination. Having done so, it would therefore have been possible, under the court’s instructions, for the jury to have failed to find that the described pocketknife was a dangerous weapon. It follows then that it was incumbent upon the trial judge to submit the lesser offense of common law robbery to the jury; this he was requested by the defendants to do and refused. This refusal we hold to be error.

The error of failure to submit to the jury the question of guilt of the lesser included offense is not cured by a verdict convicting the defendants of the higher offense. State v. Jones, 264 N.C. 134, 141 S.E. 2d 27; State v. Calloway, 1 N.C. App. 150, 160 S.E. 2d 501.

There are other assignments of error which may have merit, but, [107]*107since they probably will not reoccur, we refrain from discussing them.

Trial De Novo.

Campbell and MoRRis, JJ., concur.

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Brock, J.

The State offered evidence which tended to show that the defendants used a pocketknife in effecting the alleged robbery. Neither of the defendants offered evidence. Without recounting the circumstances of the use of the pocketknife, we feel it is sufficient for present purposes to discuss only the instructions upon which the trial judge submitted the case to the jury.

The trial judge did not rule that the pocketknife described by the State was a dangerous weapon; he submitted that question to the jury for its determination. Having done so, it would therefore have been possible, under the court’s instructions, for the jury to have failed to find that the described pocketknife was a dangerous weapon. It follows then that it was incumbent upon the trial judge to submit the lesser offense of common law robbery to the jury; this he was requested by the defendants to do and refused. This refusal we hold to be error.

The error of failure to submit to the jury the question of guilt of the lesser included offense is not cured by a verdict convicting the defendants of the higher offense. State v. Jones, 264 N.C. 134, 141 S.E. 2d 27; State v. Calloway, 1 N.C. App. 150, 160 S.E. 2d 501.

There are other assignments of error which may have merit, but, [107]*107since they probably will not reoccur, we refrain from discussing them.

Trial De Novo.

Campbell and MoRRis, JJ., concur.

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Bluebook (online)

165 S.E.2d 693, 4 N.C. App. 105, 1969 N.C. App. LEXIS 1449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-strickland-ncctapp-1969.

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