State v. Little

VAUGHN, Judge.

Defendant first contends that the court erred by failing to charge the jury on the lesser included offense of misdemeanor assault. We agree.

Defendant tendered a request, in apt time, for the jury to be instructed upon the offense of simple assault. Simple assault is clearly a lesser included offense of assault with intent to commit rape. 1 As a general proposition, the judge has a duty to declare and explain the law arising on all of the evidence. G.S. 15A-1232; see State v. Leslie, 42 N.C. App. 81, 255 S.E. 2d 635 (1979). This duty necessarily requires the judge to charge upon…