# State v. Whiteside > Supreme Court of North Carolina · October 5, 1989 · 325 N.C. 389 URL: https://www.frixlaw.com/law-library/cases/9603552 ## Case - **Full name:** State of North Carolina v. James Whiteside, Jr. - **Court:** Supreme Court of North Carolina - **Decided:** October 5, 1989 - **Citations:** 325 N.C. 389; 383 S.E.2d 911; 1989 N.C. LEXIS 479 - **Precedential status:** Published - **Opinion:** Dissent by Mitchell - **Judges:** Frye, Mitchell, Webb, Whichard - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9603552 ## How later opinions describe it (automated extraction) - holding that evidence that a pair of shoes owned by defendant matched the shoe prints found at the crime scene is relevant to identity, even if the witnesses were unsure if he was wearing those shoes on the night of the crime - holding that “circumstantial evidence tending to connect an accused with the crime” is relevant - holding as admissible under Rule 401 “relevant circumstantial evidence tending to connect an accused with the crime” - noting that Rule 609(d) was enacted to satisfy the requirements of Davis' ## Opinion text Justice MITCHELL dissenting. Relying upon our decision in State v. Rorie, 252 N.C. 579 , 114 S.E.2d 233 (1960), the majority concludes that the murder indict *409 ment against this defendant in the form prescribed by N.C.G.S. § 15-144 is insufficient to support a verdict for assault, assault inflicting serious injury or assault with intent to kill. As a result, the majority further concludes that the trial court did not err in refusing to submit possible verdicts for any of those lesser offenses. The majority specifically relies upon a statement in Rorie — which I believe was overbroad and obiter dictum in that manslaughter case — to the effect that: [W]hen it is sought to fall back on the lesser offense of assault and battery or assault with a deadly weapon, in case the greater offense, murder or manslaughter, is not made out, the indictment for murder should be so drawn as necessarily to include an assault and battery or assault with a deadly weapon, or it should contain a separate count to that effect. 252 N.C. at 581 , 114 S.E.2d at 235 . That statement was influenced, no doubt, by the Court’s view that the manslaughter indictment before it in Rorie charged “an offense of which assault with a deadly weapon may or may not be an ingredient.” 252 N.C. at 582 , 114 S.E.2d at 236 (emphasis added). In my view such statements and supporting reasoning in Rorie were wrong at the time that case was decided and have been since overruled — at least implicitly — by this Court’s decision in State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375 (1982). It is not necessary for an indictment charging a felony to specifically allege the elements essential to a separate indictment for a lesser included offense in order to support a conviction of the lesser included offense. In Weaver we stated: We do not agree with the proposition that the facts of a particular case should determine whether one crime is a lesser included offense of another. Rather, the definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. State v. Banks, 295 N.C. 399, 415-16 , 245 S.E.2d 743, 754 (1978). In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense. The determination is made on a definitional, not a factual basis. *410 306 N.C. at 635 , 295 S.E.2d at 378-79 . Under the clear and firm definitional test set forth in Weaver , there simply is no reason — in fact, there never was a reason — for the statement in Rorie that a murder indictment must specifically allege necessary elements of the lesser included offenses of assault, assault inflicting serious injury or assault with intent to kill before the murder indictment will support a conviction for such lesser offenses. The murder indictment here charges the defendant with all lesser included offenses, just as though they were set out separately. State v. Miller, 272 N.C. 243, 244-45 , 158 S.E.2d 47, 48 (1967). Therefore, it also is sufficient to support his conviction for any other offense which by definition is a lesser included offense. Assault, assault inflicting serious injury, and assault with intent to kill are lesser offenses included by definition in the indictment for murder in the present case. See id. I am also of the opinion that the evidence in the present case of the vicious and prolonged assault by the defendant and others upon the victim would support a reasonable finding by the jury that this defendant assaulted the victim with the intent to kill him or assaulted the victim and inflicted serious injury upon him, but that one of the other assailants actually killed the victim. I find no evidence, however, which would support the jury in reasonably returning a verdict for simple assault. As it is my view that the trial court committed reversible error by failing to permit the jury to consider verdicts for lesser offenses included by definition within the murder charged by the bill of indictment and supported by evidence, I conclude that the defendant must receive a new trial. Therefore, I dissent from the decision of the majority. Justices WEBB and WHICHARD join in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9603552. Public record. Not legal advice.