State v. Green , 2 N.C. App. 170 ( 1968 )

162 S.E.2d 641 (1968) 2 N.C. App. 170

STATE of North Carolina
v.
Michael Wayne GREEN.

No. 68SC156.

Court of Appeals of North Carolina.

August 14, 1968.

T. W. Bruton, Atty. Gen., and Ralph Moody, Deputy Atty. Gen., for the State.

T. O. Stennett, Charlotte, for defendant appellant.

PARKER, Judge.

Defendant contends the indictment was defective because it does not allege the exact location where the robbery took place, other than as being in Mecklenburg County. The bill of indictment in the present case is almost identical in form with the bill of indictment which was set forth in full in the opinion and was approved by the North Carolina Supreme Court in the recent case of State v. Rogers, 273 N.C. 208, 159 S.E.2d 525. What was said by the Court in that case is pertinent here:

"The time or place was not essential element of the offense in instant case. The jurisdiction of the court was established by the allegation that the crime occurred in Mecklenburg County, and after jurisdiction was established, the place of the crime became immaterial. The indictment charged the offense in a plain, intelligible and explicit manner, and contained averments sufficient to enable the court to proceed to judgment and thus bar a subsequent prosecution for the same offense."

Defendant contends State v. Rogers, supra, is not controlling here since in Rogers the victim of the robbery operated only one place of business, whereas in the instant case the Li'l General Stores operated some 32 separate places of business in Charlotte. Defendant further points out that at the time of trial he was under indictment on three other bills of indictment, each of which charged him with having committed the offense of armed robbery of other named individuals and Li'l General Stores, Inc. But if the defendant, because of the multiplicity of Li'l General Stores in the Charlotte area and of his alleged proclivity for committing armed robberies therein, needed more specific information as to exactly which store he was being charged with having robbed in this particular case, his remedy was by a motion for a bill of particulars. G.S. § 15-143. Not only did defendant fail to resort to this readily available remedy, but he even refused at the time of making his motion to quash the indictment to disclose to the court his reasons therefor. There was no error in overruling the motion to quash the indictment.

Defendant's next assignments of error, directed to the overruling of his motion for nonsuit made at the close of the State's evidence and overruling his motion in arrest of judgment made following entry of the judgment against him, raise the same questions of law. Defendant contends that under the State's evidence there was in this case no use or threatened use of any firearm, and that the victim was never put in fear. There is no merit in this contention. When the State's witness, Mollie Brown, first saw defendant he was standing at the counter with a gun in his hand. He placed the gun on the counter in front of him and demanded that she give him money. This was clearly "the use or threatened use" of a firearm whereby the life of Mollie Brown was endangered or threatened, the offense charged in the indictment and a violation of G.S. § 14-87. Exhibition of a pistol while demanding money conveys the message loud and clear that the victim's life is being threatened. There was no variance between the allegations in the bill of indictment and the State's evidence and no error in overruling defendant's motions of nonsuit and in arrest of judgment.

Defendant did not take the witness stand himself, but did attempt to introduce into evidence the record of a judgment dated February 1964, sentencing him to prison for a minimum of eight years upon his plea of guilty to armed robbery. Defendant also offered in evidence the commitment dated February 1964, committing him to prison on this judgment. Defendant contends that the trial court's exclusion of these proffered exhibits was error, in that these documents had some probative value as tending to prove an alibi. The judgment and conviction of 1964, however, were too remote to have any real probative value on the defense of an alibi, and there was no prejudicial error in the trial court's refusal to allow them in evidence. In addition, the record discloses that at the time the court excluded these documents from evidence the State offered the testimony of a detective of the Charlotte Police Department who testified, for the record, that as of 4 June 1967, the date on which the robbery occurred, defendant was an escapee from the North Carolina Department of Correction. If the court had allowed defendant's proffered documents into evidence, this evidence of the State would have become relevant and competent. The burden was on the State to prove the defendant was present and committed the crime with which he was charged. The State carried this burden by the testimony of two eyewitnesses who positively identified the defendant as the person in the store who committed the crime on the date in question.

Defendant's final assignment of error is directed to the court's failure to charge the jury as to the included lesser offense of common law robbery. There is no exception in the record upon which to base this assignment of error. Exceptions not properly set out in the record will be deemed to be abandoned and will not be considered by this Court on appeal. Rules 19(c) and 21 of Rules of Practice in the Court of Appeals. In any event, in the present case there was no evidence of the commission of any lesser offense, and the trial court properly limited the jury to two possible verdicts: Guilty of armed robbery as charged, or not guilty. The jury found defendant guilty as charged, and there was ample evidence to support the verdict.

In the entire trial there was

No error.

MALLARD, C. J., and BROCK, J., concur.