State v. Gantt

CLARK, Judge.

The defendants contend that the trial court committed prejudicial error in failing to charge the jury on the lesser included offense of nonfelonious breaking and entering. The neces sity for such a charge, however, 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.”…