State v. Mason , 279 N.C. 435 ( 1971 )

183 S.E.2d 661 (1971) 279 N.C. 435

STATE of North Carolina
v.
James MASON alias James Dudley.

No. 64.

Supreme Court of North Carolina.

October 13, 1971.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Charles M. Hensey, for the State.

James J. Caldwell, Charlotte, for defendant.

LAKE, Justice.

Upon a motion for judgment of nonsuit in a criminal action, the evidence for the State must be taken as true and the question for the court is whether there is substantial evidence that the offense charged in the bill of indictment, or a lesser offense included therein, has been committed and that the defendant committed it. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679. There is ample evidence in the record before us to support a finding of each element of the offense of robbery, State v. Rogers, 273 N.C. 208, 159 S.E.2d 525, State v. Smith, 268 N.C. 167, 150 S.E.2d 194, that the offense was committed with the use of a firearm and that the defendant was one of the persons who committed it. The conflict between the testimony of the victim of the robbery, identifying the defendant as one of the perpetrators of the offense, and the testimony of the defendant, designed to establish an alibi, merely raises a question of fact for the jury. Consequently, the defendant's motion for judgment as of nonsuit was properly overruled.

The defendant's second assignment of error is to the charge as a whole. It specifies no portion of the charge which the defendant deems erroneous and no additional instruction which he deems to be required. This is a broadside assignment and is ineffectual to bring up any portion of the charge for review by this Court. State v. Baldwin, 276 N.C. 690, 701, 174 S.E.2d 526. "Assignments of error to the charge should quote the portion of the charge to which the appellant objects, and assignments based on failure to charge should set out appellant's contention as to what the court should have charged." State v. Kirby, 276 N.C. 123, 131, 171 S.E.2d 416, 422. Nevertheless, we have examined the charge and find it free from error. It was a clear, concise and accurate statement of the applicable principles of law, contained a fair and adequate review of the evidence and applied the law to the evidence. This assignment of error is without merit.

The defendant's motion to set aside the verdict as being against the greater weight of the evidence was addressed to the discretion of the trial court and is not reviewable upon appeal. State v. Bridgers, 267 N.C. 121, 147 S.E.2d 555; State v. Wagstaff, 219 N.C. 15, 12 S.E.2d 657. The defendant's third assignment of error is, therefore, also without merit.

In addition to the assignments of error specifically set forth, the appeal is, itself, an exception to the judgment and requires an examination of the record proper to determine whether error appears on the face thereof. State v. Williams, 268 N.C. 295, 150 S.E.2d 447; State v. Sutton, 268 N.C. 165, 150 S.E.2d 50; State v. Williams, 235 N.C. 429, 70 S.E.2d 1. Since a valid indictment, or warrant, charging all the essential elements of a criminal offense, is necessary to jurisdiction, State v. McBane, 276 N.C. 60, 170 S.E.2d 913, we turn to the indictment upon which the defendant was tried. The record indicates it was not signed by the solicitor. "It is not essential in this jurisdiction to the validity of the indictment that it should be signed by the prosecuting officer." State v. Sellers, 273 N.C. 641, 651, 161 S.E.2d 15, 22; State v. Mace, 86 N.C. 668.

The indictment upon which the defendant was tried does not allege the ownership of the property alleged to have been taken, stolen and carried away. In State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37, Justice Winborne, later Chief Justice, speaking for the Court, said, "[I]n an indictment for robbery the allegation of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property." In State v. Lynch, 266 N.C. 584, 146 S.E.2d 677, the indictment charged that the defendant robbed one Rita Bryant of "Forty Four Dollars, the property of the said RITA BRYANT," whereas the evidence tended to show that the money taken from Miss Bryant was the property of the Towne House Bakery. Speaking through the present Chief Justice, this Court held the variance was not basis for nonsuit, saying:

"As to the variance with reference to the ownership of the stolen money, it is noted that ``[t]he gist of the offense [robbery] is not the taking, but a taking by force or the putting in fear.' State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37, and cases cited. * * * ``It is not essential to the crime of robbery that the property be taken from the actual holder of the legal title, a taking from one having the care, custody, control, management, or possession of the property being sufficient.' 77 C.J.S. Robbery § 7; 46 Am.Jur., Robbery § 9."

In State v. Rogers, supra, we said, "It is not necessary that ownership of the property be laid in any particular person in order to allege and prove the crime of armed robbery." The allegation in the present indictment is that the defendant "with force and arms, at and in the county aforesaid, unlawfully, wilfully and feloniously, having in his possession and with the use and threatened use of firearms, * * * whereby the life of Lee A. Blackmon was endangered and threatened, did then and there unlawfully, wilfully, forcibly, violently and feloniously take, steal, and carry away one suit, checkbook, shoes and hat and $250.00 in lawful moneys of the United States of the value of $350.00 from the presence, person, place of business, and residence of Lee A. Blackmon * * *." While there is authority to the contrary, see McGinnis v. State, 16 Wyo. 72, 91 P. 936, in our opinion this allegation sufficiently negatives any idea that the property so taken by the defendant was his own. Similar allegations were held sufficient in indictments for robbery in State v. Brill, 21 Idaho 269, 121 P. 79; Owen v. Commonwealth (Ky.), 76 S.W. 3; Wilson v. State, 28 Okla. Crim. 102, 228 P. 1108; State v. Dilley, 15 Or. 70, 13 P. 648; and Clemons v. State, 92 Tenn. 282, 21 S.W. 525.

Clearly, this language is sufficient to inform the defendant of the charge against which he must defend himself, and, being convicted and sentenced under this indictment, he could not lawfully be again indicted and tried for this occurrence by merely adding to the second indictment an allegation of ownership of the properties in another person. We, therefore, hold that the failure of this indictment to allege the name of the owner of the properties taken by the defendant from Lee A. Blackmon was not a fatal defect therein, though it is the customary and better practice to so allege.

No error.