¶1dissenting.
¶2I respectfully disagree with my scholarly colleagues of the majority in this case. I find no prejudicial error in the trial of the defendant and vote “no error.” The majority held on authority of State v. Bailey, 278 N.C. 80, 178 S.E. 2d 809 (1971), that the trial court in this case committed error in failing to submit common law robbery as a possible verdict for the jury to consider and awarded defendant a new trial. Common law robbery is a lesser included offense of armed robbery, and an indictment for armed robbery will support a conviction for common law robbery. Where there is evidence of defendant’s guilt of common law robbery, it is error for the court to fail to submit the lesser offense to the jury. State v. Bailey, supra; State v. Wenrich, 251 N.C. 460, 111 S.E. 2d 582 (1959); State v. Davis, 242 N.C. 476, 87 S.E. 2d 906 (1955); State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954); State v. Keller, 214 N.C. 447, 199 S.E. 620 (1938); State v. Faulkner, 5 N.C. App. 113, 168 S.E. 2d 9 (1969). The presence of such evidence is the determinative factor in each case. The record does not reveal such evidence in this case. All three victims of this robbery, Myra Wright, Beverly Shinn, and J. M. Lamond testified as State’s witnesses on direct examination that defendant used a chrome pistol, and his companion used a sawed-off shotgun to commit the robbery. In my opinion, there was no evidence of probative value before the trial court on the lesser included offense of common law robbery.
¶3The record shows that on cross-examination, Myra Wright testified:
“As to whether it is true that I don’t know whether the shotgun about which I have testified was a real gun, a fake gun, a toy gun, or what kind of gun, whatever kind of gun it was, it was metal and did not look like a toy. No, I don’t know that it wasn’t a toy gun. No, I don’t know whether it was a fake gun, either. With respect to the pistol about *386which I have testified, it was metal and did not look like a toy. I do not know whether it was real or whether it was a toy. It was shiny like chrome.” (Emphasis added.)
¶4On cross-examination, J. M. Lamond testified:
“With respect to the pistol, I don’t know whether it was a real pistol, fake pistol, or what kind of pistol. It looked very real. It was not a cap pistol." (Emphasis added.)
¶5I note the record does not reveal that Beverly Shinn had any uncertainty about the shotgun in question.
¶6The record does not show sufficient conflict or uncertainty of the character of the weapons used to require the trial court to charge on the lesser included offense of common law robbery. In Bailey, defendant testified and denied any recollection of the alleged robbery or the possession by him of a pistol. This, in my opinion, created the conflict in the evidence along with the testimony of Loretta Wiliams, who stated on cross-examination that she did not know whether it was a “real or toy pistol.” Such is not the case before us. The majority, relying on Bailey, would require victims of robberies to make an inspection of the weapons used to be able to testify whether or not the weapons were in fact real. I do not feel that such was the intent of Bailey.
¶7I respectfully dissent.