State v. Capel

PARKER, Judge. In their first assignment of error, defendants contend that the trial court erred in failing to charge the jury as to the lesser included offense of assault. The trial judge is required to submit to the jury a lesser included offense “only when there is evidence from which the jury could find that such included crime of lesser degree was committed.” State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545. A careful review of the present record fails to reveal any evidence suggesting the crime of simple assault. As summarized above, the State’s evidence tended to show that Capel took Trent’s revolver at Wright’s request while Wright pointed a loaded shotgun at Trent’s stomach. Defendants, sharply disputing this narrative, testified that Wright and Capel had been engaged in an argument with other persons while sitting at a table, but had drawn no guns; that Trent, taking Wright’s holstered pistol, had made them leave the Lounge at gunpoint; that while they were leaving, one Michael Williams held a shotgun on Trent and made him put both revolvers on the table; that Trent hit the shotgun Williams was holding, causing it to discharge into the ceiling; and that Wright and Capel then left the Lounge, taking no guns with them. The jury was thus given two versions of events from which to choose, one describing armed robbery, one no crime at all. The State’s evidence, if believed, would establish that defendants were guilty of a completed armed robbery. Defendants’ evidence, if believed, would establish that they were not guilty of any crime. Through no reasonable selection of [313] evidence could the jury have found the defendants guilty of assault rather than either guilty as charged or not guilty. “Mere contention that the jury might accept the State’s evidence in part and might reject it in part will not suffice” to require submission to the jury of a lesser included offense. State v. Hicks, supra. Defendants’ suggestion that the State’s evidence would warrant a jury finding that defendants, when they assaulted Trent by disarming him at gunpoint, lacked the intent to steal requisite to conviction for armed robbery, is simply not warranted by the evidence in this case. State v. Smith, 268 N.C. 167, 150 S.E. 2d 194. Defendants’ first assignment of error is without merit. In their second assignment of error, defendants challenge the propriety of numerous questions asked by the solicitor upon cross-examination of defense witnesses. The challenged questions sought information either relevant to the crime at trial or proper for impeachment purposes, and none prejudiced defendants’ right to a fair trial. No error. Chief Judge Beock and Judge Hedeick concur.