State v. Fletcher , 264 N.C. 482 ( 1965 )

141 S.E.2d 873 (1965) 264 N.C. 482

STATE of North Carolina
v.
Sandy FLETCHER.

No. 743.

Supreme Court of North Carolina.

May 19, 1965.

T. W. Bruton, Atty. Gen., and James F. Bullock, Asst. Atty. Gen., for the State, appellee.

Blackwell M. Brogden and J. Milton Read, Jr., Durham, for defendant, appellant.

PER CURIAM.

The evidence, detailed above, obviously repelled defendant's motion for judgment of nonsuit. It likewise restricted the jury to two verdicts: guilty of robbery with a dangerous weapon, i. e., a knife, or not guilty. State v. Parker, 262 N.C. 679, 138 S.E.2d 496. Either defendant robbed Mulchi of $24.00 by the threatened use of a knife having a 2-3 inch blade or (a) no robbery occurred or (b) defendant was not the robber. Defendant's contention here that "his Honor should have charged the jury on the guilt or innocence of the defendants as to the crime of larceny from the person" has no substance whatever. There was no evidence of larceny from the person. In charging the jury that it might return a verdict of common-law robbery, the court gave defendant a more favorable charge than the evidence justified.

Defendant, relying upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), contends that his statement to the officer was inadmissible. The facts in this case bear no similarity to those in Escobedo. Here defendant was informed that he had the right to remain silent and that anything he said might be used against him. In our opinion Escobedo has no application "to the free and voluntary conversation" which defendant had with Detective Cox. State v. Upchurch, N.C., 141 S.E.2d 528. Moreover, defendant here—unlike the petitioner in Escobedo—made no confession of crime. On the contrary, he stated that he had never seen Mulchi.

Defendant's other assignments of error either are formal or point to no prejudicial error.

No error.