State v. Frazier , 10 N.C. App. 178 ( 1970 )

GRAHAM, Judge.

The sole assignment of error brought forward and argued by defendant is based upon the failure of the trial court to submit to the jury the issue of defendant’s guilt of lesser included offenses. This assignment of error is overruled.

“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.” State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545.

In the present case the prosecuting witness testified that she was attacked by defendant and another man as she came out of a Launderama near the Winn-Dixie Shopping Center in Kinston. She stated that defendant grabbed her around the throat and told her not to scream. He also hit her on the chin and' knocked her down. While she was on the pavement defendant and his companion removed her pocketbook from her arm and fled. The pocketbook contained $156 and other personal articles of value. This evidence tends to show a completed robbery. Defendant did not testify and no conflicting evidence relating to the incident described by the prosecuting witness was presented. Hence, it was not incumbent upon the court to instruct the jury as to a lesser included offense. State v. Bailey, 4 N.C. App. 407, 167 S.E. 2d 24.

No error.

Chief Judge Mallard and Judge Parker concur.