State v. Richardson , 279 N.C. 621 ( 1971 )

Justice Higgins,

concurring.

In the decision of the Court finding no error in Case No. 2296 in which the defendant was convicted and sentenced for armed robbery; but dissenting in Case No. 2295 in which the defendant was convicted and sentenced for felonious assault.

The cases grew out of an armed robbery of the Bigguns Texaco Station on a public road fourteen miles east of Wades-boro on the morning of July 2, 1970. The evidence of Mr. Smith, who was in charge of the station, is stated in full in the Court’s opinion.

The defendant’s court-appointed counsel did not object to the consolidation of the two cases for trial and did not challenge the sufficiency of the evidence to go to the jury in either case. However, counsel appointed to prosecute the defendant’s appeal challenges the validity of the conviction for felonious assault as charged in Case No. 2295 upon the ground the same was embodied in the charge of armed robbery and that to permit the conviction for the assault to stand would punish the defendant twice for one offense. The motion in arrest, therefore, requires a determination whether the armed robbery charge includes felonious assault. The origin and purpose of a statute furnish essential background for its interpretation.

Prior to the convening of the General Assembly in 1929, an armed robber entered a bank, shot one of the attendants, seriously injuring him, then shot another inflicting a superficial wound. The officers arrived before the robber obtained possession of any property from the bank. The State indicted the robber (1) for attempting to commit robbery (a misdemeanor); (2) for assault with the intent to kill, inflicting serious injury not resulting in death (a felony); (3) for assault with a deadly weapon; and (4) for carrying a concealed pistol. The jury returned guilty verdicts in all the cases. Maximum sentences were imposed: two years on the road for the unsuccessful attempt to rob; ten years for the felonious assault inflicting serious injury; two years for the assault with the deadly weapon; and six months for carrying a concealed pistol. The trial judge, from the bench, announced that he was sorry the law did not permit the court to inflict sufficient punishment for the offenses committed.

At the subsequent convening of the General Assembly, House Bill No. 549 and Senate Bill No. 1202 were introduced and subsequently passed as Chapter 187, Public Laws of 1929, now codified as G.S. 14-87, and are here quoted in full:

“Section 1. Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment for not less than five nor more than thirty years.”

The bill of indictment in this case specifically charges that the defendant with the use of a firearm, whereby the life of the attendant was endangered, unlawfully took personal property from the victim. Was the shooting a part of the robbery?

In two robbery cases this Court arrested the judgment in a second indictment which charged assault with intent to kill. The jury convicted of an assault with a deadly weapon. The ground for the decision was based on a duplication of the charges. In State v. Parker, 262 N.C. 679, 138 S.E. 2d 496, and later in State v. Hatcher, 277 N.C. 380, 177 S.E. 2d 892, this Court allowed motions in arrest of judgment for the lesser included offenses of assault with a deadly weapon. In the Parker case, this Court said:

“In this case, all the evidence shows the assaults on Erskine Hill with the pistol and axe handle were committed in connection with, as a part of, and included in the robbery. A conviction of that charge includes all elements of assault with a deadly weapon. This Court, ex mero motu, takes notice of the duplication, quashes the indictment charging the assault, sets aside the verdict, and arrests the judgment.”

In the case of State v. Hatcher, supra, the Court arrived at a similar result.

The prosecution seems to admit that a charge of assault with a deadly weapon is embraced within the robbery charge. It contends that the bill does not charge serious injury and, therefore, a felonious assault charge is not included. True, the statute and indictment do not charge serious injury. Neither do they charge assault, but analysis of the statute makes it abundantly plain, it seems to me, that assault with intent to kill and the infliction of serious injury are both well within the statute and the indictment. The statute provides and the indictment charges that the defendant by the use of the pistol endangered and threatened the life of Lester Smith.

The customary use of a pistol is to fire deadly bullets. Of course, a pistol could be used as a paperweight, but such was not the use contemplated by G.S. 14-87. The bill charges the use of a pistol in such manner as endangered life. That means any use that falls short of taking life. The prosecution admits that if the shooting is such as not to inflict serious injury, the charge is included in armed robbery. But if the bullet goes a little deeper and inflicts a little more injury, that is not included in armed robbery. If the shooting in the robbery results in the death of the victim, the robber can be charged with murder in the first degree and the proof that the killing was in the perpetration of the robbery, the charge of murder is established. In that event the capital felony statute applies, but if the injury falls short of death, the armed robbery statute takes over and provides punishment up to thirty years for that offense. That punishment is the same as that provided for the most aggravated crime of murder in the second degree.

By holding, as the Court now does, that felonious assault is not included in armed robbery, the Court puts emphasis on minute, technical manipulation of legal phraseology, but displays practically no knowledge of the “use of a pistol.” The State says the offenses must be kept separately because some officer might appear on the scene and be shot and seriously wounded and the defendant protected from prosecution by reason of the robbery charge. The illustration does not fit. The robbery charge is confined to the robber and the victim. If a stranger comes on the scene, whatever either does to him, the doer is answerable. The use of the firearm must be in the taking, or the attempt to take, personal property from a person, or a person in charge, and the firearm used in such manner as to endanger or threaten life. The use of the firearm involves the result of the use.

Finally, the prosecution contends the robbery was over and the shooting occurred after the defendant had possessed himself of the victim’s money and his pistol. The whole transaction in the little one-man filling station was over in seconds and at no time did the robber retreat or even turn backward toward the door until after the property was taken and the shots were fired.

If the State’s position is correct, if the shots had been fatal, the robber could not have been convicted of a felony-murder because the robbery was over. Surely the Court does not desire to put in the books a statement which would enable a robber who shoots his victim to come into the court and say, “Oh, no. I got his property before I shot him and, therefore, you cannot convict me of murder in the first degree because of a killing in the perpetration of a robbery.”

Intent is a condition of the mind to be inferred from conduct and surroundings. The indictment in plain words charged the defendant with the use of a pistol in such manner as endangered Smith’s life. The use of the pistol inflicted the wounds. The statute fixes the maximum punishment for armed robbery at three times the maximum for common law robbery, and three times the maximum for the most vicious case of assault with a deadly weapon with intent to kill. In this case the judgment fixed the defendant’s maximum punishment at thirty years in the armed robbery case and ten years in the felonious assault case, the sentences to run consecutively. The defendant says he is being punished twice for one offense in violation of his rights under Article I, Section 19, North Carolina Constitution, and Articles V and XIV of the United States Constitution.

In the case of State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838, Justice Moore, for this Court, states the general rule here quoted with respect to double jeopardy:

“. . . (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.

The only exception to this well established rule is the holding in some cases that conviction of a minor offense in an inferior court does not bar a prosecution for a higher crime, embracing the former, where the inferior court did not have jurisdiction of the higher crime.”

In State v. Freeman, 162 N.C. 594, 77 S.E. 780, this Court said: “. . . (A) test almost universally applied to determine the identity of the offenses is to ascertain the identity in character and effect of the evidence in both cases.”

The victim’s testimony, recorded in eighteen lines of the record, describes all that took place inside the filling station between the time the robber drew the pistol and the time he closed the door as he left the scene. Two different crimes cannot be established on the basis of differences in time of the successive acts constituting the robbery. The robbery was not over so long as the robber was on the scene trying to dispatch his victim, to facilitate his escape with the loot and to prevent alarm and pursuit.

In State v. Bell, 205 N.C. 225, 171 S.E. 50, this Court said:

“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 grows out of the same transaction, then an acquittal or conviction of an offender for the lesser offense will bar a prosecution for the greater.

To adopt any other view would tend to destroy the efficacy of the doctrine governing second jeopardy which is embedded in our organic law as a safeguard to the liberties of the citizens.”

In determining former jeopardy the well-considered cases place emphasis on the question whether one should be punished twice for the same unlawful conduct. Both the charges in the indictments and the evidence at the trial are properly examined to determine whether two prosecutions are attempted for one overall offense.

“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.” Wharton’s Criminal Law and Procedure, Vol. 1, Sec. 148.

In well-reasoned opinions, appellate courts of other states have passed on essentially the same questions now before us. In Duckett v. State (Texas) 454 S.W. 2d 755, the petitioner was indicted, convicted and sentenced on the charge of robbery by the use of a firearm. At the same time he was indicted for assault with intent to murder. Both indictments grew out of the same transaction. The court said:

“This is one continuous transaction, within the contemplation of the clause of the constitution which inhibits a second trial for the same offense; and, being such, the state cannot be permitted to prosecute again for assault with intent to murder. The State can carve the minor part of the transaction ... or can carve the major part of the transaction .... However, the state can carve only the one time.

H: ‡ ‡ ‡

The inhibition against double jeopardy is determined by the facts and circumstances and not by the name of the offense.”

In State v. Richardson, 460 S.W. 2d 537, the Supreme Court of Missouri (en banc) reversed a conviction for assault with intent to maim on the ground Richardson had been convicted of an attempt to commit robbery. The court held: “A person may by one act violate more than one statute or commit more than one offense, but the state cannot split a single crime and prosecute it in parts without placing the defendant in double jeopardy.”

Perhaps the leading case on the question before us is Wilcox v. State, 6 Lea (Tenn) 571, 40 Am Rep 53. The accused was convicted of robbery and subsequently convicted at a later term of the court for assault with intent to commit murder growing out of the same transaction. The court said:

“The prosecutor (victim), upon the trial, testified to a violent and dangerous assault made upon him by the defendants, and he stated also on his cross-examination, that he had testified to the same facts upon his examination in the previous trial of defendants on the charge of robbery. It was "for the assault at the time of the robbery that the conviction was had in this case. Force and violence were proved in each case, and were alike essential in both to sustain a conviction. It was one continuous transaction, in which defendants perpetrated a robbery, by violence, dangerously wounding the prosecutor. (Emphasis added.) Being one transaction, the prosecutor may carve as large an offense out of it as he can, but it is said ‘he must cut only once . . . .’

The assault or violence in the robbery case being an essential element or ingredient of the offense, and constituting an important and material part of that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case as a material part thereof, it cannot be again punished, as it would be if the judgment below were allowed to stand.”

The two related statutes involved here are G.S. 14-87 and G.S. 14-32. They must be construed together. When they involve a case of armed robbery, the former includes the latter. Criminal statutes must be strictly construed. “The forbidden act must come clearly within the prohibition of the statute, for the scope of a penal statute will not ordinarily be enlarged by construction to take in offenses not clearly described; and any doubt on this point will be resolved in favor of the defendant.” State v. Hill, 272 N.C. 439, 158 S.E. 2d 329; State v. Garrett, 263 N.C. 773, 140 S.E. 2d 315; State v. Heath, 199 N.C. 135, 153 S.E. 855.

The evidence discloses the robbery took place during daylight in a one-man filling station in the country. From the vie-tim’s evidence it clearly appears the robbery was over in a very short time, perhaps in seconds. The robber entered, drew his pistol, demanded and received the contents of the cash register, seized a .22 pistol from a cigar box by the cash register, ordered the victim to lie down with his head on his hands, whereupon the robber fired three shots and fled. We may assume neither the victim nor the robber wasted any time in what they were doing. A daylight robbery would not ordinarily be a leisurely conducted affair. Does not this record disclose one overall transaction?

This Court has repeatedly held that a charge of assault with a deadly weapon is a lesser included offense in the charge of assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death. The very fine opinion by Bobbitt, Justice (now Chief Justice), contains the following: “It (assault with a deadly weapon) is an essential element of the felony created and defined by G.S. 14-32, being an included ‘less degree of the same crime.’ ” State v. Weaver, 264 N.C. 681, 142 S.E. 2d 633. See also State v. Jones, 264 N.C. 134, 141 S.E. 2d 27; State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545.

The Court now says the foregoing is not true in this particular case because the assault with a deadly weapon is included in and a part of the armed robbery, but is not included in this particular felony charge. In my opinion the necessity of making this fine and illogical legal distinction stems from the error which the Court is now committing in upholding the felonious assault charge in this case. If there is one conviction of assault with a deadly weapon, can there be a subsequent conviction of the felony charge of which it is a part? The Bell, Birckhead, and other cases say “No.”

If the Court’s present decision is correct, may not the State obtain indictments against persons who inflict serious injury by the use of a deadly weapon in robbery cases and require the robber to answer for the separate crime of felonious assault which he committed in connection with and as a part of the robbery? The statute of limitations does not run in felony cases. If the crimes are independent and separate, as the Court now holds, they need not be tried at the same time and as a part of the robbery charge. This further illustrates and underscores the fallacy of the Court’s present action in denying the motion in arrest of judgment in Case No. 2295.

In dividing one transaction into two separate felonies the Court is planting a “booby trap.”

I concur in the decision finding no error in Case No. 2296.

I vote to arrest the judgment in Case No. 2296.