Herndon v. State

We granted the writ of certiorari in this case to review a holding by the Court of Criminal Appeals that a defendant charged with first degree robbery was entitled to have the jury instructed on the lesser included offense of third degree robbery because there was evidence that the gun he used in the robbery was not loaded. We disagree, and we reverse the judgment of the Court of Criminal Appeals and remand the case to that Court for further proceedings consistent with this opinion.

Richard Herndon was convicted of first degree robbery; he appealed and raised the issue of whether the trial…