State v. Harvell , 256 N.C. 104 ( 1961 )

123 S.E.2d 103 (1961) 256 N.C. 104

STATE
v.
Willard Eugene HARVELL and John Franklin Coble.

No. 584.

Supreme Court of North Carolina.

December 13, 1961.

E. L. Alston, Jr., Greensboro, for defendants-appellants.

T. W. Bruton, Atty. Gen., G. Andrew Jones, Jr., Asst. Atty. Gen., for the State.

WINBORNE, Chief Justice.

The defendant appellants challenge, and the Court holds properly so, as prejudicial to them that portion of the charge to which Exception No. 11 is directed and on which Assignment 10 is based. There the court charged as follows:

"(M) ``that as to Riggie William Gibson, if you are satisfied from the evidence and beyond a reasonable doubt, the burden being on the State to so satisfy you that he, Riggie William Gibson, on the first day of March, 1961, robbed Louis Gray, the robbery being as defined to you by the court, that is he took money off of him or goods off of him, or that he was present and that he took them against his will and by force and by the use of a dangerous weapon off the person of Louis Gray, if you are satisfied of that from the evidence and beyond a reasonable doubt, it would be your duty to return a verdict of guilty as charged in the bill of indictment as to the defendant Riggie William Gibson, and likewise as to each of the other defendants.' (N) As shown by Exception No. 11."

The gravamen of the complaint of the appealing defendants as to this assignment is that the court said in effect that if the jury should find that Riggie William Gibson did certain acts, then it should find him guilty as charged in the bill of indictment and should find "likewise as to each of the other defendants." The point is well taken.

New trial.