State v. Acrey , 262 N.C. 90 ( 1964 )

136 S.E.2d 201 (1964) 262 N.C. 90

STATE
v.
Gilbert ACREY.

No. 652.

Supreme Court of North Carolina.

May 20, 1964.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.

Jerry L. Jarvis, Durham, for defendant appellant.

PER CURIAM.

The court held the bill of indictment charged the crime of larceny, to wit, the larceny of thirty-five cents from the person of Russell Wheeler. See G.S. § 14-72. We agree. Appellant's contention that the bill of indictment charges the crime of common-law robbery is untenable. The words, "with force and arms," constitute a formal phrase traditionally included in bills of indictment. See G.S. § 15-155. They have no significance as an element of the specific crime charged in the bill of indictment.

The court charged correctly as to all essential elements of the crime of larceny. Appellant contends the court erred by failing to instruct the jury as to the additional elements necessary to constitute the crime of common-law robbery. Since the bill of indictment did not charge common-law robbery, appellant's said contention is without merit.

The State's evidence tended to show appellant obtained the thirty-five cents from Wheeler by seizing him, slapping him and putting him in fear. Under the court's instructions, the jury was required to so find as a prerequisite to a verdict of guilty as charged. These instructions may have placed too great a burden upon the State but were not prejudicial to appellant.

Appellant did not testify. Cook, appellant's codefendant, was the only witness for the defense. Cook's testimony tended to show appellant, a pedestrian, accused Wheeler of reckless driving; that a quarrel ensued in the course of which appellant slapped Wheeler; and that "about ten minutes" later, when relations were amicable, Wheeler freely and voluntarily loaned thirty-five cents to appellant. Thus, the slapping incident to which Cook's testimony refers did not occur on the occasion appellant got the thirty-five cents from Wheeler.

The court instructed the jury to return a verdict of guilty as charged or a verdict of not guilty. Appellant contends, citing G.S. § 15-169 and G.S. § 15-170, that the court should have instructed the jury that they might return a verdict of guilty of an assault. The contention is untenable. An assault is not a lesser degree of the crime charged in the bill of indictment.

We commend appellant's court-appointed counsel for his diligence and ingenuity in presenting this appeal. However, after careful consideration, we are of opinion, and so decide, that appellant's assignments do not disclose prejudicial error.

No error.