State v. Evans , 25 N.C. App. 459 ( 1975 )

213 S.E.2d 389 (1975) 25 N.C. App. 459

STATE of North Carolina
v.
Timothy Andrew EVANS.

No. 7518SC47.

Court of Appeals of North Carolina.

April 16, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Joan H. Byers, Associate Atty. Gen., Raleigh, for the State.

Taylor & Upperman by Herman L. Taylor and Leroy W. Upperman, Jr., Greensboro, for defendant-appellant.

MARTIN, Judge.

At the close of the State's evidence the trial court denied defendant's motion for nonsuit. The jury was instructed that they could find defendant guilty of armed robbery or not guilty. Defendant contends the trial court erred in denying his motion for judgment as of nonsuit to the charge of robbery with a firearm because the State failed to prove that the object allegedly used in the crime was a firearm. For the same reason it is argued that the court should have instructed the jury on common law robbery and further that the court should have defined what constitutes a firearm.

State's witness, Kathleen Baird, identified State's Exhibit Number One as the "gun" used in the robbery. Arthur Lee Braswell also referred to the object used in the hold up as a "gun". Both of these witnesses repeatedly called it a "gun" without objection. There was no evidence that it was not a gun or that it was incapable of discharging a missile. Under these circumstances the evidence was sufficient to carry the case to the jury on the charge of robbery with firearm. See State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961).

An indictment for robbery with firearms will support a conviction of a lesser offense such as common law robbery, assault with a deadly weapon, larceny from the person, simple larceny or simple assault, if a verdict for the included or lesser offense is supported by the evidence on the trial. State v. Davis, 242 N.C. 476, 87 S.E.2d 906 (1955).

"The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).

Unlike State v. Faulkner, 5 N.C.App. 113, 168 S.E.2d 9 (1969), the present case contains no evidence tending to show the commission of common law robbery. It follows that the court did not err in failing to instruct the jury on common law robbery. Nor do we think the court's failure to define what constitutes a firearm was error.

For corroborative purposes, K. W. Brady of the Greensboro police was allowed to testify over objection concerning statements made to him by Arthur Braswell about the robbery. Defendant contends that this testimony was inadmissible where Braswell never testified that he made any statements to Brady. We disagree. In the first place, it does not appear necessary that Braswell testify as to having made statements to Brady. State v. McLawhorn, 270 N.C. 622, 155 S.E.2d 198 (1967). Secondly, Braswell had testified previously that he talked to officers on several occasions about the robbery. This assignment of error is overruled.

No error.

BRITT and HEDRICK, JJ., concur.