State v. Wilson

215 S.E.2d 167, 26 N.C. App. 188, 1975 N.C. App. LEXIS 2002

• Court: Court of Appeals of North Carolina
• Decided: June 4, 1975
• Docket: No. 7512SC244
• Status: Published

Opinion

BRITT, Judge.

Defendant assigns as error the failure of the court to grant his motion to arrest the judgment, contending that assault with a deadly weapon inflicting serious injury is not a lesser included offense of attempted common law robbery. The assignment must be sustained.

In State v. Stepney, 280 N.C. 306, 318, 185 S.E. 2d 844 (1972), Justice Huskins, speaking for the court, said: “ ... It is only when all essentials of the lesser offense are included among the essentials of the greater offense that the law merges them into one and treats the less serious charge as a ‘lesser included offense’.”

In Stepney, the court held that an assault with a deadly weapon inflicting serious injury is not a lesser included offense of armed robbery because the infliction of serious injury is not an essential ingredient of the armed robbery charge. See also, State v. Richardson, 279 N.C. 621, 185 S.E. 2d 102 (1971).

In State v. Stewart, 255 N.C. 571, 572, 122 S.E. 2d 355 (1961), the court defined common law robbery as “ . . . the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear.” Neither infliction of serious injury nor the use of a deadly weapon is an essential ingredient of common law robbery or attempted common law robbery.

For the reasons stated, we hold that the court erred in submitting the charge of assault with a deadly weapon inflicting serious injury as a lesser included offense of attempted common law robbery.

Judgment arrested.

Judges Parker and Vaughn concur.