State v. Stepney , 280 N.C. 306 ( 1972 )

Justice Higgins

concurring in Case No. 70 CR 2250 charging armed robbery; dissenting in Case No. 70 CR 2250A charging felonious assault.

Prior to 1919 our statute law provided in cases of assault, with or without intent to kill, any person convicted thereof shall be punished by fine or imprisonment, or both, at the discretion of the courts; provided, where no deadly weapon is used and no serious damage is done, the punishment shall not exceed a fine of fifty dollars or imprisonment for thirty days, but this proviso shall not apply to cases of assault with intent to kill, or with intent to commit rape, or to cases of assault by any man or boy over eighteen years of age on any female person.

By Chapter 101, Public Laws, Session 1919, the General Assembly provided: “That any person who assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony and shall be punished by imprisonment in the State prison or be worked on the county roads for a period of not less than four months nor more than ten years.”

In cases in which the indictment charges a felonious assault, the jury, as it finds the facts to be from the evidence, may convict of a felonious assault as above defined, or an assault with a deadly weapon, or a simple assault. Upon failure to find either the use of a deadly weapon, or the intent to kill, or serious injury, the verdict at most could be guilty of assault with a deadly weapon (a misdemeanor); or if the jury should fail to find the use of a deadly weapon, then at most the verdict could be guilty of assault. State v. Weaver, 264 N.C. 681, 142 S.E. 2d 633; State v. Jones, 264 N.C. 134, 141 S.E. 2d 27; State v. Jones, 258 N.C. 89, 128 S.E. 2d 1; State v. Cody, 225 N.C. 38, 33 S.E. 2d 71.

The offense in this case occurred in February, 1970, and must be tried according to the law in effect as of that date. The 1971 statutes are not applicable.

Without question, however, in this case the robbery and the assault are parts of a single transaction. This Court has held in State v. Hatcher, 277 N.C. 380, 177 S.E. 2d 892, and in State v. Parker, 262 N.C. 679, 138 S.E. 2d 496, that an assault with a deadly weapon committed in the course of a robbery is a part of and included in the indictment for armed robbery. If a verdict of guilty of assault with a deadly weapon is returned and judgment entered thereon, the judgment will be arrested on the ground of double jeopardy.

Wharton’s Criminal Law and Procedure, Vol. 1, Sec. 148, states the rule:

“It is generally agreed that if a person is tried for a greater offense, he cannot be tried thereafter for a lesser offense necessarily involved in, and a part of, the greater, at least when, under the indictment for the greater offense, the defendant could have been convicted of the lesser offense.”

Justice Moore in State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838, stated the rule:

“ . . . (W)hen an offense is a necessary element in and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to a prosecution to the other.”

Chief Justice Stacy in State v. Bell, 205 N.C. 225, 171 S.E. 50, stated the rule:

“The principle to be extracted from well-considered cases is that by the term, ‘same offense,’ is not only meant the same offense as an entity and designated as such by legal name, but also any integral part of such offense which may subject an offender to indictment and punishment.

When such integral part of the principal offense is not a distinct affair, but grows1 out of the same transaction, then an acquittal or conviction of an offender for the lesser offense will bar a prosecution for the greater.”

Further authorities are cited and discussed in the dissenting opinion in State v. Richardson, 279 N.C. 621, 185 S.E. 2d 102.

Assault with a deadly weapon with intent to kill inflicting serious1 injury not resulting in death is a felony. However, if the injury is not serious, all other elements being present, the offense is only a misdemeanor. In the Hatcher and Parker cases the Court held a misdemeanor assault was included in the armed robbery indictment and a separate judgment for assault with a deadly weapon should be arrested. In this case, as in Richardson, the Court is holding a felonious assault is not included in the armed robbery indictment and the judgment should not be arrested. A mite more or less injury makes the difference.

Under the present holdings, the trial judge will have some difficulty charging the jury in assault cases which constitute a part of armed robbery. I anticipate the charge must go something like this: If you return a verdict of guilty on'the armed robbery charge, you will then consider the felonious assault charge. If you find from the evidence beyond a reasonable doubt the defendant assaulted the victim with a deadly weapon with intent to kill, inflicting serious injury not resulting in death, you will return a verdict of guilty of felonious assault. But if you do find the defendant assaulted the victim with a deadly weapon with intent to kill, but failed to find the defendant inflicted serious injury, you will acquit him because the misdemeanor assault was a part of the armed robbery charge.

Heretofore in other felonious assault cases, the Court has charged that if you fail to find the defendant guilty of a felonious assault, as the Court has defined that offense, you would then determine whether the defendant is guilty of the lesser included offense of assault with a deadly weapon. You cannot convict of assault with a deadly weapon in this case. The Supreme Court in its wisdom has said in an armed robbery case the misdemeanor assault is included, but the felonious assault is not included.

The maximum punishment for armed robbery is the same as it is in the most aggravated case of murder in the second degree. It is three times the maximum for common law robbery. It is three times the maximum for assault with a deadly weapon with intent to kill inflicting serious injury. One of the Senators who assisted in the passage of the armed robbery statute in 1929 thought the punishment provided was sufficient to enable the court to impose adequate punishment for all the injury resulting from the use of the weapon in armed robbery unless the victim’s death resulted, in which event the prosecution would be for first degree murder.

Other legal authorities which fortify my belief the judgment in the assault case should be arrested, are cited and analyzed in the dissent to State v. Richardson. These include cases from other jurisdictions.