State v. Whitaker

WHICHARD, Judge.

Defendant contends the evidence supported submission to the jury of the charge of assault, a lesser included offense of attempted common law robbery. We agree, and accordingly award a new trial.

When a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of *667which could be proved by proof of the allegations in the indictment. Further, when there is some evidence supporting a lesser included offense,…