Whether or not the judge in a criminal trial is required to charge the jury on a lesser included offense is of utmost importance to a criminal defendant, his counsel and the court. Failure to instruct on lesser included offenses when required will result in a new trial for defendant. From the attorney's standpoint, failure to request such a charge may reveal inadequate representation of his client. The courts have a stake in insuring that required lesser included offenses are addressed at the trial level because failure to do so results in renewed litigation and further expense to both the state and the defendant. The determinative factor for charging on a lesser included offense is the presence of evidence offered at trial from which a jury could find that such a crime of a lesser degree was committed. Where a state presents evidence tending to show the crime charged and where neither party presents conflicting evidence on any of the elements, a court is not required to instruct on the lesser offense. The North Carolina Supreme Court addressed the sufficiency of conflicting evidence relating to use or threatened use of a dangerous weapon in an armed robbery charge. Without specifically defining conflicting evidence, the Court unequivocably stated what evidence is not sufficiently conflicting to require an instruction for common law robbery.
Tony Carlton Dalton, Criminal Law - Submission to the Jury of Lesser Included Offenses, 2 Campbell L. Rev. 145 (1980).