State v. Smith , 24 N.C. App. 316 ( 1974 )

HEDRICK, Judge.

The one question argued on this appeal is whether the trial judge erred in failing to charge the jury on the lesser included offenses of armed robbery. Our Supreme Court in State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547 (1954), has set forth the rule for determining when an instruction on a lesser included offense must be given: “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.”

All of the State’s evidence in this record tends to show that the defendant committed the crime charged in the bill of indictment. The evidence of Wilkens tends to show that the defendant committed no crime at all. Since the State’s evidence shows that an armed robbery was committed and there is no conflicting evidence relating to the elements of the. crime charged, there was no necessity for the trial judge to instruct the jury, on the lesser included offenses of armed robbery. State v. Hicks, supra. ■

The defendant had a fair trial free from prejudicial error.

No error.

Judges Britt and Martin concur.