State v. Terry

179 S.E.2d 368 (1971) 278 N.C. 284

STATE of North Carolina
v.
Donald Ray TERRY and Samuel Lee Jackson.

No. 53.

Supreme Court of North Carolina.

March 10, 1971.

Robert Morgan, Atty. Gen., Christine Y. Denson, Asst. Atty. Gen., Raleigh, for the State.

R. D. Douglas, III, Greensboro, Asst. Public Defender, for defendant-appellants.

HIGGINS, Justice.

The appellants challenge the validity of their trial on these grounds: (1) The evidence was insufficient to make out a case of armed robbery, and their motion for a directed verdict of not guilty should have been allowed; and (2) If the court holds the evidence sufficient to make out a case of robbery, the trial judge should have charged the jury that the lesser included offense of common law robbery was a permissible verdict for the jury to render under the evidence in the case, and the failure of the court so to charge was error which entitles the defendants to a new trial.

The evidence, including the testimony of the defendant Terry, disclosed that Winchester, Terry and Jackson were companions. They entered the Ma-jik Market together. Jackson "cased the joint" and went back to their automobile. Winchester and Terry approached the cashier. Winchester drew a large automatic pistol and announced, "``* * * (T)his is a stick up, give me your money.'" Winchester took the contents of the cash register, which a check up showed to have been $51.81. He and Terry, who was with him at the cash register, then immediately fled and joined Jackson who was waiting in Winchester's automobile. The cashier saw Winchester and Terry go to the automobile. She immediately notified the police. By radio, patrolling officers were alerted and a number of police vehicles joined in the chase. By means of a moving road block they pushed the get-away vehicle off the road. As it stopped, Winchester and Jackson "bailed out" and headed for the woods. One of the officers chased, caught and arrested Jackson. Another officer chased Winchester and caught up with his dead body in the woods. Winchester's 45 automatic pistol was lying near his right shoulder. A sum of money, in the denominations and amount closely approximating the market's loss, was recovered from his pocket. Other officers arrested Terry at the scene of the road block. Two revolvers, one a 32 caliber, were found on the rear floorboard of Winchester's vehicle. The only possible reference to gunfire came from Terry who testified that during the arresting process he "heard bullets".

Clearly the evidence implicates Winchester, Jackson and Terry in planning and executing the hold up, and in attempting to escape together. When two or more persons aid and abet each other in the commission of a crime, all are principals and equally guilty. State v. Sellers, 266 N.C. 734, 147 S.E.2d 225; State v. Horner, 248 N.C. 342, 103 S.E.2d 694. When one party to a robbery points a pistol, the act is deemed to be the act of the other participants. State v. Kelly, 243 N.C. 177, 90 S.E.2d 241.

The court did not commit error in failing to charge the jury that common law robbery was a permissible verdict in the case. All the evidence, including Terry's, disclosed that Winchester drew a large automatic pistol and by its threatened use forced the cashier to surrender the market's money. True, only Winchester brandished the pistol, but his partners in the crime each making his separate contribution, are equally guilty of armed robbery. State v. Kelly, supra. In State v. Spencer, 239 N.C. 604, 80 S.E.2d 670, this Court said: "It is thoroughly established law in North Carolina * * * when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty." (Citing many cases).

All the evidence disclosed a robbery by the threatened use of a large automatic pistol. Evidence of any lesser included offense is absent. The court followed the precedents in refusing to submit the issue of common law robbery.

No error.