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26 N.C. App. 188

State v. Wilson

Court of Appeals of North Carolina · decided 1975-06-04

Cited by 2 later decisions — most recently October 2007

2 state decisions

Relies on State v. Stepney · State v. Richardson · State v. Stewart

Good law ✅— No negative treatment on recordhow we know

Decided 1975-06-04

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BRITT, Judge.

¶1Defendant 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.

¶2*190In 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’.”

¶3In 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).

¶4In 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.

¶5For 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.

¶6Judgment arrested.

Judges Parker and Vaughn concur.
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