State v. McNeely

94 S.E.2d 853 (1956) 244 N.C. 737

STATE
v.
William Robert McNEELY.

No. 221.

Supreme Court of North Carolina.

November 7, 1956.

Charles V. Bell, Charlotte, Peter H. Bell, Plymouth, for defendant-appellant.

Atty. Gen., George B. Patton, Asst. Atty. Gen., Claude L. Love, for the State.

WINBORNE, Chief Justice.

The record of the case on appeal here presented discloses assignments of error substantially as follows:

Numbers 1 and 2 are directed to exceptions to two portions of the charge given to the jury. It is noted, however, that in brief filed in this Court neither of the exceptions to the designated portions of the charge is set out by appellant, nor is reason or argument stated or authority cited in support of them. Hence the assignments of error are taken as abandoned by appellant. Rule 28 of Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562. Nevertheless, reading the charge as a whole, prejudicial error in the portions covered by the exceptions is not made to appear.

Number 3 is based upon Exception No. 3 to the action of the court "in failing to charge the jury on the law applicable to the case as required by G.S. § 1-180" in five particulars:

(a) As the law applies to an attempt to commit robbery. In North Carolina it is provided by statute, G.S. § 15-170, that "upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime." In accordance with this statute, and in the light of the evidence in the case, the trial judge ruled that the only issue in the case was whether or not defendant was guilty of an attempt to commit common-law robbery. While the judge did not define in detail what is meant by "an attempt to commit robbery," the language used is accordant with ordinary meaning of the word attempt, and is clearly understandable. State v. Jones, 227 N.C. 402, 42 S.E.2d 465. Indeed, defendant was not contesting the meaning of the term.

(b) and (c): As to assault, and as to the return of verdict of assault or simple assault: The principle upon which a defendant may be convicted of a less degree of the crime charged in the bill of indictment applies only where there is evidence of guilt of a less degree. State v. Spain, 201 N.C. 571, 160 S.E. 825. Here the trial judge ruled that under the evidence in the case defendant was guilty, if at all, of an attempt to commit common-law robbery. And where all the evidence tends to show that the crime of an attempt to commit common-law robbery, a lesser degree of the crime alleged in the bill of indictment, and defendant relies upon another defense, and does not contend that he might be found guilty of a lesser degree of the crime, and introduces no evidence to that effect, and makes no request that the court instruct the jury thereon, the failure of the court to so instruct the jury will not be held for error. State v. Jackson, 199 N.C. 321, 154 S.E. 402.

(e) As to verdict of guilty as charged "when * * * defendant was not charged with an attempt to commit robbery": As hereinabove stated a verdict of guilty of an attempt to commit robbery is permissible under a bill of indictment charging common-law robbery. G.S. § 15-170. "It is the rule with us, both in civil and criminal actions," as declared by Stacy, C. J., writing for the Court in State v. Whitley, 208 N.C. 661, 182 S.E. 338, 340, "that a verdict may be given significance and correctly interpreted by reference to the pleadings, the facts in evidence, admission of the parties, and the charge of the court", citing State v. Snipes, 185 N.C. 743, 117 S.E. 500, and many other cases. See also Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493; Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764, and cases cited. Tested by this standard, it would seem that the verdict as recorded is responsive to the charge in the light of the evidence, and is sufficient to support the judgment.

Reverting to (d)—That the court committed error in pronouncing judgment on the verdict of the jury: In this connection this Court in State v. Hare, 243 N.C. 262, 90 S.E.2d 550, 552, in opinion by Denny, J., declared that "At common law, an attempt to commit a felony was a misdemeanor", and that "our law in this respect remains unchanged, except where otherwise provided by statute", citing State v. Spivey, 213 N.C. 45, 195 S.E. 1, and State v. Surles, 230 N.C. 272, 52 S.E.2d 880.

And it is provided by statute G.S. § 14-3 that "All misdemeanors, where a specific punishment is not prescribed shall be punished as misdemeanors at common law; but if the offense be infamous, or done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a felony and punished by imprisonment in the county jail or State prison for not less than four months nor more than ten years, or shall be fined."

It appears that defendant was sentenced under this statute, G.S. § 14-3.

The question then is whether an attempt to commit the crime of robbery is an infamous crime.

Robbery at common law is the felonious taking of money or goods of any value from the person of another or in his presence against his will, by violence or putting him in fear. State v. Burke, 73 N.C. 83; State v. Bell, 228 N.C. 659, 46 S.E.2d 834. Common-law robbery, therefore, is a felony, and an infamous crime. United States v. Evans, 28 App.D.C. 264, cited in Annotation 24 A.L.R. 1016.

Moreover, "An attempt to commit a crime is an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission. * * * ``An indictable attempt, therefore, consists of two important elements: (1) An intent to commit the crime, and (2) a direct ineffectual act done towards its commission.'" State v. Surles, supra [230 N.C. 272, 52 S.E.2d 882], and cases cited.

Hence in the light of the principle discussed and applied in State v. Surles, supra, this Court holds that an attempt to commit the offense of common-law robbery is an infamous crime,—and punishable as provided in G.S. § 14-3.

After careful consideration of all points raised or attempted to be raised by appellant on this appeal, sufficient reason is not shown for disturbing the verdict and judgment in the case.

JOHNSON, J., not sitting.